Theodore v. Danning, Gill, Diamond & Kollitz CA2/7 ( 2021 )


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  • Filed 6/24/21 Theodore v. Danning, Gill, Diamond & Kollitz CA2/7
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
    MICHAEL THEODORE,                                           B291700
    Plaintiff and Appellant,                               (Los Angeles County
    Super. Ct. No. BC680011)
    v.
    DANNING, GILL, DIAMOND &
    KOLLITZ, et al.
    Defendants and Respondents.
    APPEAL from a judgment of the Superior Court of Los
    Angeles County, Gregory W. Alarcon, Judge. Affirmed.
    Steven Zelig, WLA Legal Services, Inc. for Plaintiff and
    Appellant.
    Law Offices of Thomas J. Weiss and Thomas J. Weiss; Lyle
    Mink for Defendants and Respondents.
    _______________________
    INTRODUCTION
    Kyle Madison, his former wife Marjan Madison,1 and
    Michael Theodore formed a limited liability company to operate a
    rental property in Mexico. After financial disputes arose, Kyle
    filed an action against Theodore alleging breach of fiduciary duty
    and fraud, among other claims. The trial court appointed a
    referee pursuant to Code of Civil Procedure section 6392 to
    conduct an accounting and a liquidator pursuant to the
    Corporations Code to wind up the company’s affairs. After
    several years of hard-fought litigation, Theodore filed this action
    against the Madisons, their counsel, the referee, the liquidator,
    and the liquidator’s counsel alleging they wrongfully excluded
    Theodore’s counsel from their communications during the
    prosecution of Kyle’s action and unlawfully “teamed up” against
    Theodore.
    The referee, the Madisons, and the Madisons’ counsel filed
    special motions to strike under Code of Civil Procedure section
    425.16. Ruling that the referee’s and the Madisons’
    communications and litigation conduct were protected activities
    and that Theodore failed to demonstrate a probability of
    prevailing on his claims, the trial court granted the motions.
    Theodore argues that, because the referee and the Madisons
    engaged in “criminal misconduct,” section 425.16 does not apply.
    According to Theodore, even if the activities of the referee and the
    Madisons were protected under section 425.16, he made a
    1      We refer to the Madisons by their first names and
    collectively as the “Madisons.”
    2    Undesignated statutory references are to the Code of Civil
    Procedure.
    2
    sufficient prima facie showing of merit. Theodore also argues
    that the litigation privilege is not a bar to his claims because it
    does not apply to criminal misconduct, noncommunicative
    conduct, or conspiracy and aiding and abetting. We affirm.
    FACTUAL AND PROCEDURAL HISTORY
    A. The Dissolution Action
    1. Casa W, LLC
    In 2005, Kyle, who is an attorney, Marjan, and Theodore
    purchased a house in Cabo San Lucas, Mexico and formed a
    limited liability company, Casa W, LLC (Casa W), to operate the
    property as a rental business. Theodore was the managing
    member of Casa W. Theodore owned another limited liability
    company, Casa Theodore, LLC, that owned the adjacent property
    known as Casa Theodore. Theodore was the only member of
    Casa Theodore, LLC.
    2. Complaint and Cross-complaint
    After the parties could not resolve disputes regarding
    Casa W’s finances, on April 15, 2011, by his counsel Lyle R. Mink,
    Kyle filed an action against Theodore and Casa W alleging eight
    causes of action for breach of the contract, breach of fiduciary
    duty, breach of the covenant of good faith and fair dealing, fraud,
    dissolution of Casa W, appointment of receiver, an accounting,
    and preliminary and permanent injunctions in aid of receiver.3
    Kyle alleged that Theodore had engaged in “abuse of authority,
    self-dealing and pervasive fraud” as the managing member of
    Casa W. Kyle alleged that, despite repeated requests over the
    3     At Kyle’s request, the trial court later added Marjan as a
    plaintiff.
    3
    years, Theodore never provided any records of rental income,
    expenses, and other costs for Casa W. Nor, Kyle alleged, did
    Theodore furnish any records documenting his disbursements,
    expenditures, and loans on behalf of Casa W. On April 13, 2012,
    by their counsel, Daniel J. Spielfogel, Theodore and Casa W filed
    a cross-complaint against the Madisons alleging five causes of
    action for declaratory relief, breach of contract, breach of
    fiduciary duty, breach of the covenant of good faith and fair
    dealing, and fraud. On January 24, 2013, the trial court4
    appointed Pamela Wax-Semus, a certified fraud examiner, as an
    expert under Evidence Code section 730 to analyze the financial
    transactions of Casa W and Casa Theodore, LLC.
    3. Trial
    After approximately 15 days of trial, in an October 22, 2015
    statement of decision, the trial court5 ruled that Theodore
    breached his fiduciary duties to the Madisons because “he cut the
    Madisons out of the operation of the business with no authority
    to do so and did not share the profits with them, thus, acting
    against the interests of the Madisons.” The trial court further
    ruled, “[G]iven that it was and is not possible for the members of
    [Casa W] (vs. Theodore alone) to carry out the business of [Casa
    W] according to the terms of the Operating Agreement because
    [Theodore] has essentially shut out the Madisons, [Casa W] must
    be dissolved.” The trial court found, “Wax-Semus’ work
    exceedingly credible, reliable, and instructive.” The trial court
    added, “[Wax-Semus] performed an unbelievable amount of work
    [in] this case. In fact, she was the only expert in this case that
    4     Judge Frederick C. Shaller
    5     Judge Samantha P. Jessner
    4
    performed the item-by-item analysis that [the trial court]
    anticipated. As a result, the parties’ experts . . . relied heavily on
    the work that she performed.” The trial court further found,
    “Wax-Semus did exactly what a certified fraud examiner is
    supposed to do—she followed the evidence in order to arrive at
    her conclusions.”
    4. Referee and Liquidator
    By order dated March 4, 2016, in accordance with section
    639, subdivision (a)(2), the trial court appointed Wax-Semus as a
    referee to conduct an accounting. The trial court ordered Wax-
    Semus to “prepare a detailed accounting of all receipts and
    disbursements, which includes an analysis of source documents
    (e.g., bank statements and canceled checks) and a detailed
    analysis of the financial accounting records of [Casa W],
    including but not limited to general ledgers, cash receipts
    journals, disbursement journals, and general/adjustment
    journal[s] from January 1, 2005 to date.” The trial court ordered
    Casa W to pay for Wax-Semus’s services. The trial court further
    ordered, “If there are insufficient funds in the [Casa W] bank
    account to pay her bill, the parties may seek a further order of
    court to decide the appropriate course of action at that time.”
    In another order dated March 4, 2016,6 the trial court
    dissolved Casa W effective October 22, 2015 pursuant to
    Corporations Code section 17707.03, subdivisions (a) and (b). The
    trial court appointed Richard C. Diamond the “Court-Appointed
    6     We take judicial notice of this order, the orders dated
    August 1, 2016, August 16, 2016, August 22, 2016, and December
    13, 2017, and the judgment entered on January 22, 2021. (See
    Evid. Code, § 451, subd. (a).)
    5
    Liquidator of [Casa W]” to “wind up” Casa W’s affairs. The order
    provided, “Diamond has the authority to take or not take any
    action incident to dissolution, including without limitation the
    authority to bind [Casa W] to new or additional liabilities.
    Diamond may sell, transfer, pledge, or otherwise dispose of [Casa
    W’s] assets on such terms and for such consideration as he, in his
    sole discretion, deems reasonable, accept as payment for the
    assets either cash or obligations of the purchaser, pay all debts
    and obligations of [Casa W], and generally take or not take such
    actions as may be necessary and reasonable to completely wind
    up the business of [Casa W].” The order further stated,
    “Diamond shall have the sole authority to employ and discharge
    persons whose services for or on behalf of [Casa W] may or may
    not be reasonably necessary in connection with the winding up
    process, including but not limited to attorneys, accountants,
    brokers, and other professionals.” The order also provided,
    “Under Corporations Code section 17707.04(c), Diamond shall be
    entitled to reasonable compensation from [Casa W] to wind up
    the affairs of the [Casa W].” The order stated, “If there are
    insufficient funds in [Casa W] bank account(s) to pay expenses
    associated with the winding up process, including but not limited
    to costs associated with the sale of [the rental property], the
    parties may seek a further order of court to decide the
    appropriate course of action at that time.”
    In March 2016, Diamond hired his law firm, Danning, Gill,
    Diamond & Kollitz, LLP (Danning Gill), to act as the liquidator’s
    general counsel. On August 1, 2016, the trial court ordered
    Theodore to pay $166,211.87 to Diamond. The trial court also
    ordered the Madisons and Theodore to “each pay one-half of all of
    the bills of Ms. Pamela Wax-Semus.”
    6
    5. The Conversion Action
    On July 13, 2016, Mink filed on behalf of the Madisons an
    action in the Los Angeles Superior Court against Theodore’s
    counsel, Spielfogel, and Theodore’s accounting expert, Thomas E.
    Pastore. Based on allegations that Theodore paid Spielfogel and
    Pastore “monies from bank accounts that contained the
    undistributed [Casa W] funds due the Madisons” and that
    Spielfogel and Pastore “wrongly assumed control” over the funds
    and “applied them” to their own personal use, the complaint
    asserted causes of action for conversion. The Madisons attached
    payment schedules prepared by Wax-Semus to their complaint
    6. Disqualification of Referee
    On February 14, 2017, based on Wax-Semus’s “legion of
    unauthorized ex parte communications” with Kyle, Mink, and
    Diamond, Theodore filed a motion to disqualify Wax-Semus,
    vacate the court’s October 22, 2015 statement of decision, require
    Wax-Semus to return to Theodore all fees he paid to Wax-Semus,
    and enter terminating sanctions against the Madisons. On
    March 24, 2017, after finding that “Wax Semus had a duty to
    avoid ex parte communications and promptly notify parties of the
    substance of ex parte communications to provide the parties with
    an opportunity to respond,” the trial court disqualified Wax-
    Semus as a referee.
    The trial court found that “there is overwhelming evidence
    that Wax Semus has consistently violated her duty to refrain
    from engaging in ex parte communications in her capacity as a
    referee in this action.” The trial court explained, “Wax-Semus
    has been exposed to a barrage of disparaging comments from
    attorney Mink toward both Defendant Theodore and his counsel.
    For example, Mink called Theodore ‘dishonest’ prior to phase one
    7
    of trial in this matter . . . and a ‘thief’ who Mink guesses has
    ‘already cheated the IRS out of plenty’ on May 12, 2016. . . . Wax
    Semus failed to notify defense counsel of these disparaging
    comments and personal attacks. [¶] Additionally, on May 13,
    2016, the date of a Final Status Conference in this action, Wax
    Semus provided [Diamond] with information regarding why he
    ‘and Mr. Theodore have different income numbers for 2015.’
    While Wax Semus copied Mink on the email, she failed to copy
    [Theodore’s] counsel. As if that wasn’t bad enough, she ended the
    email as follows: ‘I hope this helps. Good luck.’ . . . Additionally,
    in complete disregard of duties, on July 5, 2016, Wax Semus
    provided ‘schedules/documents you may be able to use at the
    hearing on Thursday’ to Mink and [Diamond]. . . . Again,
    [Theodore and Casa W] were not copied on this communication.”
    The trial court further found, “By far the most troubling conduct
    by Wax Semus occurred on June 9, 2016 when she provided a
    separate report to Mink at his sole request that later formed the
    basis for a lawsuit Madison filed against Spielfogel and
    [Theodore’s] forensic accountant, Pastore.”
    In rejecting Theodore’s request to vacate the
    October 22, 2015 statement of decision, the trial court found:
    “Each of the e-mails that [Theodore] claims show that Wax-
    Semus was biased, engaging in unauthorized ex parte
    communications and lacking in credibility were admitted in the
    phase one trial and considered by the court.” The trial court
    ruled, “[Theodore] was given a full opportunity to present
    evidence of the potential bias of Wax-Semus, Wax-Semus’s
    report, and her conclusions in the first phase of trial. . . . [W]hile
    there is direct evidence of attorney Mink disparaging Defendant
    Theodore and his attorney to Wax-Semus prior to phase one of
    8
    trial, there is no evidence that Wax-Semus entertained that same
    bias or adopted Mink’s unprofessional opinion of Theodore and
    Spielfogel.” Therefore, the court found that Theodore’s “due
    process rights were adequately protected” at trial. The trial court
    added that Theodore’s “attempts to get out from under an
    adverse ruling are disingenuous and transparent.”
    The trial court also denied Theodore’s request that Wax-
    Semus return all funds paid by Theodore because “Theodore’s
    arguments are properly considered at the conclusion of this
    action (assuming there is a conclusion) pursuant to Evid. Code
    § 731.” As to Wax-Semus’s invoices for her services as a referee,
    the trial court found, “[I]t was not clear that Theodore has paid
    any of her bills since she was appointed as referee (especially
    given that he rarely seems to pay anyone’s bills even when faced
    with the prospect of imprisonment).” After finding the conduct of
    Kyle and Mink “deeply troubling,” the trial court commented, “As
    to the ex parte communications that are before the court, it is
    difficult to ignore the extent to which Mink and Mr. Madison
    treated Wax Semus essentially as a member of their litigation
    team, the most obvious example being their request that she
    prepare a schedule enabling them to sue Spielfogel and Pastore
    in a separate action.”
    7. Trial Court Recusal and Discharge of Liquidator
    On March 27, 2017, “upon reflection,” the trial court7
    recused itself, explaining “that further proceedings in this case
    should proceed before another judicial officer unencumbered” by
    the opinions formed from “the nature and extent of ex parte
    communications that plaintiff Kyle Madison and his attorney,
    7     Judge Samantha P. Jessner
    9
    Lyle Mink, had with Pamela Wax-Semus after the court
    appointed her as a referee in this case.” Because of the recusal,
    by order dated August 16, 2017, the trial court8 declared a
    mistrial because the same judge was not available to complete
    the trial. On August 22, 2017, “in furtherance of this Court
    having declared a mistrial in this action,” the trial court entered
    an order discharging Diamond.
    On December 13, 2017, the trial court entered an order
    approving “on a final basis” $918,009.77 in fees and costs for
    Diamond and Danning Gill. After deducting prior payments, the
    December 13, 2017 order required Casa W, the Madisons, and
    Theodore to jointly and severally pay Diamond and Danning Gill
    $797,879.95. The trial court retained “jurisdiction over any
    disputes or other matter involving” Diamond and any
    professionals he retained. The order provided it was “enforceable
    as a money judgment” in favor of Diamond and against Casa W,
    Theodore, and the Madisons.
    After a retrial, on January 22, 2021, the trial court entered
    a judgment of $3,928,300 against Theodore and in favor of the
    Madisons. The judgment provided that the Madisons’ attorney
    fees would be determined by separate motion.
    B. This Action
    On October 13, 2017, Theodore filed this action in the Los
    Angeles Superior Court against the Madisons, Mink,9 Wax-
    Semus, Diamond, and Danning Gill (defendants).
    8     Judge Gregory W. Alarcon
    9     Theodore also named Lyle R. Mink, A Law Corporation.
    10
    1. Communications with Fraud Examiner/Referee
    In a 160-page first amended complaint filed on January 18,
    2018, Theodore alleged that, before the court appointed Wax-
    Semus as an Evidence Code section 730 expert, Wax-Semus
    represented that she “would and could be fair, impartial and
    would conduct [herself] in accordance with the rules and bylaws
    of the ‘Association of Certified Fraud Examiner.’” However,
    according to Theodore, Wax-Semus later “conceded that she had
    no intent of complying with this promise” and “severely violated
    virtually every standard of the Association of Certified Fraud
    Examiners.” Theodore further alleged that the Madisons and
    Mink “aided, abetted and encouraged” Wax-Semus “in defrauding
    and breaching fiduciary duties owed” to Theodore “by engaging in
    a large number of ex parte communications of both a substantive
    and strategic nature” with Wax-Semus.
    Based on the “rampant” and “pervasive” ex parte
    communications among Wax-Semus, Kyle, and Mink, Wax-
    Semus “covertly stepped out of her role as neutral and impartial
    court appointed expert, and into the role as advocate and expert
    witness for the [Madisons] and [Mink] and charged [Theodore] for
    her time helping the [Madisons] and [Mink], and otherwise acting
    as part of their litigation team.” Theodore alleged that Wax-
    Semus’s “inappropriate and illegal conduct included litigation
    strategies and approaches to be used by the [Madisons] and
    [Mink] against [Theodore] and doing so without alerting
    [Theodore].” Theodore further alleged that Wax-Semus “[f]alsely
    billed” Theodore for services that were “provided” to the
    Madisons and Mink and that Wax-Semus procured “substantial
    amounts of funds from [Theodore] under the false and fraudulent
    pretense that she was acting as [a] neutral and impartial arm of
    11
    the court.” Theodore alleged that Wax-Semus “procured under
    false pretenses” $124,000 in payments from Theodore.
    Theodore further alleged that, as a direct result of Wax-
    Semus’s “skewed and corrupt testimony,” in March 2016 the trial
    court “expanded” the role of Wax-Semus by appointing her as a
    “referee.” Because this appointment “[w]as an arm of the court, it
    was even more important that Wax-Semus comply with ethical
    standards imposed on a judge . . . to avoid ex parte
    communications at all costs.” Theodore also alleged that, after
    her appointment as a referee in March 2016, Wax-Semus
    “continued to engage in illegal ex parte communications of a
    strategic and substantive nature with” Mink, Kyle, Diamond, and
    Danning Gill.
    Theodore further alleged that, “in an unprecedented
    example of malice,” based on accounting schedules that Wax-
    Semus prepared, on July 13, 2016, Mink filed on behalf of the
    Madisons an action in the Los Angeles Superior Court against
    Spielfogel and Pastore. Mink and the Madisons “filed the suit to
    interfere with Spielfogel’s representation of [Theodore], and to
    upset Pastore so that he would bow out as [Theodore’s] forensic
    expert.” According to Theodore, the Madisons and Mink “falsely
    and without any basis” alleged that “Pastore and Spielfogel had
    engaged in conversion, and had engaged in acts justifying
    punitive damages per Civil Code section 3294.” Theodore alleged
    that, although Theodore “paid in substantial part for the time
    [Wax-Semus] spent in creating the schedules used against [him],”
    Theodore “never authorized” Wax-Semus “to generate these
    schedules.”
    12
    2. Communications with Liquidator and His Counsel
    Theodore also alleged that, “as a direct result of the corrupt
    testimony of [Wax-Semus], the trial court appointed Diamond” to
    liquidate Casa W. Theodore alleged that Diamond “had no intent
    of properly managing [Casa W],” that Diamond’s “‘intent [was] to
    immediately hire a lawyer associated with [Danning Gill] in
    order to inflate billing,” and that Diamond’s intent was to follow
    his and Danning Gill’s “established business practice” to
    “generate bills that were as high as possible.” Theodore alleged
    that, Diamond and Danning Gill, like Wax-Semus, “illegally
    ‘team[ed]’ up” with the Madisons and Mink and “engage[d] in
    illicit ex parte communications.” Theodore alleged that between
    March 4, 2016 and August 1, 2016 Diamond “engaged in more
    than 270 ex parte communications” with the Madisons and Mink.
    Before presenting a “sampling” of the ex parte communications
    involving Diamond, the first amended complaint described “four
    categories of illicit ex parte communications: (1) Ex parte
    communications sent to [Diamond and Danning Gill] in which
    Mink severely disparages Theodore and Spielfogel; (2) Ex parte
    communications in which Kyle and Mink direct and instruct
    Diamond and Wax-Semus as to how to conduct themselves, and
    dispatch Diamond as the investigative envoy of the Madisons and
    Mink; (3) Ex parte communications where Mink strategized with
    Diamond in favor of the Madisons and against Theodore, and, (4)
    Miscellaneous ex parte communications.”
    For example, the complaint quoted emails from Mink to
    Diamond in which Mink stated that Theodore “does not tell the
    truth,” that he “bribes people,” and that he was “deceitful.” The
    first amended complaint further alleged that in ex parte
    communications Mink told Diamond that Diamond “needs to take
    13
    over the property immediately,” that “you need to be more
    decisive about such things,” and that “as to the discrepancy
    (Diamond) found in the rents . . . I’m going in next week for an
    OSC re contempt against Theodore.” Theodore further alleged
    that Kyle sent a “very lengthy e-mail to [Diamond], in which
    [Kyle] instructed [Diamond] to investigate at least 15 different
    issues when he was in Cabo.” In furtherance of the “fraudulent
    and illegal scheme,” Theodore alleged that Diamond and Danning
    Gill submitted “fraudulent, excessive, and exaggerated” bills for
    their services to Theodore.
    3. 23 Causes of Action
    In the first amended complaint, based on the
    communications among the defendants, Theodore asserted a first
    cause of action for “fraud in the inducement and performance”
    against Wax-Semus and the Madisons and Mink “who aided and
    abetted and conspired with [Wax-Semus]”; a second cause of
    action for “negligent misrepresentation” against Wax-Semus; a
    third cause of action for breach of fiduciary duty against Wax-
    Semus and the Madisons and Mink “who aided and abetted
    [Wax-Semus]”; a fourth cause of action for “constructive fraud”
    against Wax-Semus and the Madisons and Mink “who aided and
    abetted and conspired with [Wax-Semus]”; a fifth cause of action
    for “statutory violations” (Pen. Code, §§ 484, 496) against Wax-
    Semus and the Madisons and Mink “who aided and abetted and
    conspired with [Wax-Semus]”; a sixth cause of action for
    negligence against Wax-Semus; a seventh cause of action for
    breach of contract against Wax-Semus; an eighth cause of action
    for “intentional interference with contract” against Wax-Semus
    as to Theodore’s contract with the Madisons; a ninth cause of
    action for “breach of fiduciary duty” against Diamond and
    14
    Danning Gill “aided and abetted by and in conspiracy with” the
    Madisons and Mink; a tenth cause of action for “constructive
    fraud” against Diamond and Danning Gill “aided and abetted by
    and in conspiracy with” the Madisons and Mink; an eleventh
    cause of action for “statutory violations” (Pen. Code §§ 484, 496)
    against Diamond and Danning Gill “aided and abetted by and in
    conspiracy with” the Madisons and Mink; a twelfth cause of
    action for “conversion” against Diamond and Danning Gill; a
    thirteenth cause of action for “negligence” against Diamond and
    Danning Gill; a fourteenth cause of action for “breach of contract”
    against Diamond and Danning Gill; a fifteenth cause of action for
    “intentional interference with contract” against Danning Gill; a
    sixteenth cause of action for “breach of fiduciary duty” against
    the Madisons “aided and abetted by and in conspiracy with” Wax-
    Semus, Diamond, Danning Gill, and Mink; a seventeenth cause of
    action for “constructive fraud” against the Madisons “aided and
    abetted by and in conspiracy with” Wax-Semus, Diamond,
    Danning Gill, and Mink; an eighteenth cause of action for “breach
    of contract” against the Madisons; a nineteenth cause of action
    for “interference with contract” against the Madisons and Mink; a
    twentieth cause of action for “wrongful appointment and
    manipulation of liquidator” against the Madisons; a twenty-first
    cause of action for “defamation/false light” against the Madisons;
    a twenty-second cause of action for “fraud” against Diamond,
    Danning Gill, Mink, and the Madisons; and a twenty-third cause
    of action for “statutory violation (civil RICO)” against Diamond
    and Danning Gill “aided and abetted by and in conspiracy with”
    Mink and the Madisons. The twenty-third cause of action was for
    violation of the Racketeer Influenced and Corrupt Organizations
    Act (RICO; 
    18 U.S.C. § 1961
     et seq.)
    15
    C. Special Motions To Strike
    1. Mink
    Mink argued that the 12 causes of action alleged against
    him “arise from and directly relate to [Mink’s] actions and
    communications in his capacity as attorney for the plaintiffs” in
    the dissolution and conversion actions. Accordingly, “each such
    cause of action is based on conduct described in section 425.16”
    because “[s]tatements made in litigation, are protected activity.”
    Citing Flatley v. Mauro (2006) 
    39 Cal.4th 299
     (Flatley), Mink
    further argued “that [Theodore] cannot contend that mere
    assertions and allegations that communications are criminal
    removes them from qualifying as protected activity under the
    anti-SLAPP statute.” According to Mink, “the question of
    whether litigation communications are criminal arises only when
    the court turns to step 2, and inquires whether the claims based
    on protected conduct are supported by evidence sufficient to
    establish criminality.”
    Relying on Bergstein v. Strook & Strook & Lavan LLP
    (2015) 
    236 Cal.App.4th 793
     (Bergstein), Mink argued, “[Theodore]
    cannot show probability of success on any of his claims because of
    the scope of the litigation privilege under section 47 of the Civil
    Code. That privilege is absolute, except for malicious prosecution
    claims, which are not and cannot be part of the complaint
    herein.” Concerning Theodore’s RICO cause of action, Mink
    argued that it was not only “based on the same litigation-related
    communications which are the basis of the other claims,” but also
    that Theodore failed to allege the required predicate acts and the
    pattern of racketeering activity.
    16
    2. The Madisons
    In the Madisons’ special motion to strike the 15 causes of
    action asserted against them, the Madisons repeated Mink’s
    arguments that “[s]tatements made in litigation or in connection
    with litigation, are protected activity,” that Theodore “cannot
    contend that mere assertions and allegations that
    communications are criminal removes them from qualifying as
    protected activity,” and that Theodore “cannot show a probability
    of success on any of his claims because of the scope of the
    litigation privilege under section 47 of the Civil Code.” The
    Madisons added, “All of the causes of action against the
    [Madisons] arise from and directly relate to [Kyle’s] actions and
    communications in his capacity as attorney for the plaintiffs in
    the [dissolution and conversion actions]. . . . With respect to
    [Marjan], the ‘theory’ of her liability is entirely one of vicarious
    liability for the litigation-related communications of Mink and
    [Kyle].”
    3. Wax-Semus
    To strike the 11 causes of action asserted against her, Wax-
    Semus argued, “All of the factual allegations in [Theodore’s]
    complaint describe Ms. Wax-Semus acting in her capacity as
    either the court-appointed Evidence Code § 730 expert, or as the
    court-appointed Code of Civil Procedure § 639(a)(2) referee.
    There are no factual allegations plead against Ms. Wax-Semus
    other than in those two capacities.” Because her “alleged conduct
    consists of statements or actions in connection with a judicial
    proceeding[ ], or in connection with an issue under consideration
    or review by a judicial proceeding[ ],” Wax-Semus maintained
    that she established protected activity under section 425.16,
    subdivision (e)(1) and (2).
    17
    Wax-Semus further argued the “litigation privilege is a
    substantive defense that [Theodore] simply cannot overcome”
    because Theodore’s claims “arise from the discharge of her duties
    as the court-appointed expert under Evidence Code § 730,”
    “[e]ach and every communication complained of by [Theodore]
    was made in the course of [the dissolution action], a judicial
    proceeding,” and the “communications were allegedly made to
    further the [Madisons’s] goals and objectives in [the dissolution
    action].” Wax-Semus also argued that Theodore’s claims were
    barred because she “enjoy[ed] quasi-judicial immunity as both
    the court-appointed referee under Code of Civil Procedure
    § 639(a)(2) and as the court-appointed expert under Evidence
    Code § 730.” Finally, Wax-Semus stated in a declaration, “I have
    had no dealings with Plaintiff Michael Theodore whatsoever in
    any capacity other than as the court-appointed expert witness
    under Evidence Code § 730 and other than as the court-appointed
    referee under Code of Civil Procedure § 639(a)(2) in [the
    dissolution action].”
    4. Theodore’s Oppositions
    a. Wax-Semus
    In opposition to Wax-Semus’s special motion to strike,
    Theodore argued that “the court cannot grant the anti-SLAPP
    motion as to any cause of action” because “each cause of action
    asserted against Wax-Semus contains provable allegations that
    Wax-Semus engaged in criminal misconduct.” According to
    Theodore, he did not “have to get to the merits of [his] causes of
    action” because, under Flatley, supra, 
    39 Cal.4th 299
    , “if illegality
    is demonstrated . . . then the anti-SLAPP statute is not available
    to the defendant.” Theodore contended, “Wax-Semus’s conduct
    and procurement of substantial funds from Theodore under false
    18
    and fraudulent pretenses, constituted a criminal offense per
    [Penal Code] sections 484 and 496 and hence is not subject to the
    litigation privilege or to protection under section 425.16.”
    Theodore further argued, “[I]t is clear that Wax-Semus
    severely violated her duties as an officer of the court and engaged
    in a conspiracy with the Madisons, Mink, and Diamond, resulting
    in a very significant damage to Theodore.” Theodore added that
    “engaging in conspiracy is an independent, non-communicative
    act which is not subject to the litigation privilege.” Theodore also
    argued that the “wrongful taking of money is not protected
    activity. Since this is central to [Theodore’s] claim against Wax-
    Semus, the court must deny this motion.” Because “Wax-Semus
    stepped out of her proper role as an independent expert, and into
    the role of being part of Madisons’s litigation team,” Theodore
    argued Wax-Semus “cannot rely on quasi-judicial immunity.”
    Without specifying the evidence that supported the elements of
    the causes of action asserted against Wax-Semus or citing legal
    authorities that established the legal sufficiency of these causes
    of action, Theodore concluded that he demonstrated “his prima
    facie case as to [the] causes of action asserted against Wax-
    Semus.”
    b. Mink
    Theodore also argued that “every cause of action
    asserted against Mink includes provable allegations of criminal
    conduct, . . . accordingly the court cannot grant this motion as to
    any cause of action.” Theodore further argued, “Section 6128 of
    the [Business and Professions] Code makes it a misdemeanor for
    Mink to engage in any deceit or collusion with the intent to
    deceive the court or a party. Here, Mink severely disparaged
    Theodore, calling him every ‘name in the book,’ and accusing him
    19
    in so many different ways of being a criminal.” Theodore
    continued, “Especially in light of the very high volume of emails,
    a reasonable trier of fact could conclude that this constituted
    collusive and deceitful conduct designed to deceive a person and
    the court.” Theodore maintained that “Mink’s conduct in aiding
    and abetting both Wax-Semus and Diamond in procuring
    substantial funds from Theodore under false and fraudulent
    pretenses, constituted a criminal offense per [Penal Code]
    Sections 484 and 496 and hence is not subject to the litigation
    privilege or to protection under section 425.16.” According to
    Theodore, “[B]ecause section 425.16 does not apply to criminal
    misconduct, the court does not even have to go to the second step
    of the analysis.”
    Theodore also argued that the litigation privilege did not
    apply because “Mink’s conduct and communication was not
    designed to achieve the legitimate objects of the litigation.” In
    summary fashion without identifying evidence in relation to the
    elements of the causes of action or establishing the legal
    sufficiency of the causes of action, Theodore concluded that he
    demonstrated “his prima facie case” as to the causes of action
    asserted against Mink. For example, regarding the tenth cause
    of action against Mink for aiding and abetting Diamond’s and
    Danning Gill’s “constructive fraud,” Theodore asserted, “[T]here
    is a mountain of evidence by which the trier of fact can conclude
    that Mink aided and abetted constructive fraud by Diamond.”
    c. The Madisons
    After pointing out the “acts and omissions of Mink . . . are
    imputable to the Madisons,” Theodore argued, “Kyle himself
    personally engaged in many direct communications with Wax-
    Semus/Diamond, issued directive[s] to them and was effectively
    20
    copied on all emails between Mink, Wax-Semus, Diamond and
    [Danning Gill].” Theodore added that “engaging in conspiracy is
    an independent, non-communicative act which is not subject to
    the litigation privilege.” Theodore then repeated his argument
    that because “every cause of action asserted against the Madisons
    . . . includes provable allegations of criminal conduct,” the “court
    cannot grant this motion as to any cause of action.” Theodore
    further argued that, based on the “severe nature of the highly
    disparaging comments Kyle and Mink made about Theodore in
    emails,” Theodore has a probability of prevailing on all causes of
    action. Theodore repeated his conclusory arguments that he
    demonstrated “his prima facie case” as to all causes of action
    asserted against the Madisons. Theodore did not identify the
    evidence that supported the elements of the causes of action or
    established their legal sufficiency.
    d. Spielfogel Declaration
    In support of Theodore’s oppositions to the three special
    motions to strike, Spielfogel filed a 123-page declaration. In his
    declaration, Spielfogel summarized and quoted from the
    “pervasive ex parte communications” among Kyle, Mink, and
    Wax-Semus. According to Spielfogel, he attached to his
    declaration “true and correct copies of: (1) examples of emails
    and other documentation evidencing unethical and inappropriate
    ex parte communications of a substantive nature of which I was
    not informed; (2) examples of numerous instances where Mr.
    Mink, Mr. Madison and Ms. Wax-Semus made inappropriate and
    prejudicial comments about Mr. Theodore of which I was not
    informed and not given the opportunity to rebut; (3) examples of
    numerous instances where Ms. Wax-Semus assisted Mr. Madison
    and Mr. Mink in the prosecution of their case against Mr.
    21
    Theodore; (4) examples of numerous instances where Mr.
    Madison and Mr. Mink directed Ms. Wax-Semus to do or not do
    certain things and her acceptance of the directives; (5) examples
    of instances where Ms. Wax-Semus assisted Mr. and Mrs.
    Madison and Mr. Mink in developing alleged evidence to support
    their maliciously prosecuted lawsuit against Mr. Pastore and
    [Spielfogel]; (6) examples of other instances of completely
    inappropriate conduct.” Spielfogel also attached to his
    declaration Wax-Semus’s and Mink’s invoices for services
    performed in the dissolution action.
    For example, Spielfogel referenced an email Kyle sent Wax-
    Semus and Mink on November 12, 2014 in which Kyle stated:
    “Hi Pamela: You indicated that Mr. Theodore has provided you
    with 7,000 pages of expense documents for both Casa W and Casa
    Theodore, which he has failed to produce to [Mink] or myself. Do
    you believe that the documents produced are within the scope of
    your assignment? If you do not, please inquire with Mr.
    Theodore or his counsel why they believe it to be relevant to your
    task. We look forward to your response. Thank you.” Regarding
    this email and the other emails Spielfogel quoted regarding Wax-
    Semus, Spielfogel stated: “I did not consent to this significant ex
    parte communication, especially one going to substantive issues
    and to the scope of Ms. Wax-Semus’s assignment. . . . The above
    and other facts and documents referenced in this declaration
    demonstrate that she was at the beck and call of Mr. Mink and
    Mr. Madison and that she accepted directives from one of the
    parties in the matter in which she was appointed. Ms. Wax-
    Semus never alerted me to the high volume of substantive ex
    parte communications, loaded with evidentiary and prejudicial
    22
    matter. Ms. Wax-Semus clearly stepped out of her proper role as
    a neutral arm of the Court.”
    Spielfogel further stated that on January 8, 2015
    “Mr. Mink outrageously direct[ed] Ms. Wax-Semus as follows:
    ‘Please correct your conclusion and omit the recommendation
    that disregards Judge Mackey’s deadline. In other words, just
    assume that the documents you have are the only ones you are
    going to get.’” Spielfogel further stated: “Ms. Wax-Semus’s bill
    for services allegedly rendered in May of 2015 contained
    numerous entries demonstrating her alliance with [the Madisons]
    and that she had become an expert for [the Madisons], including,
    but not limited to: (1) ‘reviewing transcripts;’ (2) ‘preparing for
    rebuttal testimony;’ and (3) ‘assisting on preparation for trial.’ . . .
    I did not give her any transcripts to review. I did not ask her to
    assist in preparation for trial. I did not ask her to ‘prepare for
    rebuttal testimony.’ This is powerful evidence that she had
    abandoned the role of neutral and independent expert and
    became part of [the Madisons’s] team.”
    Spielfogel also pointed out that, after Diamond’s
    appointment as liquidator in March 2016, the ex parte
    communications among Mink, Kyle, and Wax-Semus now
    included Diamond or Danning Gill. Spielfogel attached
    Diamond’s and Danning Gill’s billing statements to his
    declaration. Spielfogel also attached to his declaration numerous
    email communications among Diamond, Danning Gill, Wax-
    Semus, Kyle, or Mink. For example, Spielfogel quoted an email
    Mink sent to Diamond and Danning Gill on March 26, 2016 in
    which Mink stated: “I would take no comfort in getting the keys
    to the house from Theodore-The-Thief. [¶] Knowing him the way
    we do, it would not surprise us if he had the keys duplicated and
    23
    was renting out the house as he was looking you in the eye and
    telling you that he was not. That’s why you not only need to fine
    tune your bullshit meter, you also need boots on the ground to see
    what’s really happening with the house. Needless to say those
    boots cannot belong to someone who knows Theodore and is
    somehow loyal to him or can be bribed.” Regarding this email
    and the other emails Spielfogel quoted that Diamond and/or
    Dunning Gill sent or received, Spielfogel stated: “At the time
    that this email was transmitted, I did not know of, or consent to,
    said ex parte communication. I certainly never consented to Mr.
    Mink or Mr. Madison instructing Mr. Diamond how to do his job.
    I was not given the opportunity to respond to this
    communication.”
    Spielfogel also set forth an April 5, 2016 email Mink sent to
    Diamond, Kyle and Danning Gill in which Mink stated, “Richard:
    In view of our discussion, it looks like I will need your declaration
    to get the judge to expand the accounts you have access to?”
    Spielfogel also quoted an April 9, 2016 email from Mink to
    Danning Gill in which Mink stated: “Aaron: Please try to
    include a reference to Panama in the declaration if it’s admissible
    and not awkward. That is, when Richard tried to reach
    Theodore, he found out he was in Panama. Where did that come
    from? Hearsay?” Spielfogel further quoted an email from Mink
    to Diamond and Danning Gill dated April 17, 2016. In this email,
    Mink stated: “Richard: Here is a very rough draft of (1) an
    application to amend the March 4 order, and (2) the proposed
    order. Please give me your comments tomorrow or at your
    earliest convenience. Also, please give me your proposed changes
    for your declaration, based on what you received from Theodore
    on Friday.” Spielfogel also quoted an email dated June 17, 2016
    24
    sent from Wax-Semus to Diamond, Danning Gill, and Mink.
    Wax-Semus stated: “Gentlemen: Please subpoena a newly
    discovered bank account. Bank of America account number
    80002147115 held in the name of Casa Theodore Inc. I have also
    attached evidence that Mr. Theodore has deposited [Casa W]
    income into his personal bank account in August of 2014. After I
    complete by review of the documents received today, I know I will
    require additional subpoenas.”
    e. Theodore Declaration
    In a declaration submitted in opposition to the special
    motions to strike, Theodore stated: “I have paid to Ms. Wax-
    Semus $124,933.72. Because Ms. Wax-Semus has been removed
    and disqualified, the entirety of this expenditure has been
    wasted. Moreover, it is very upsetting to me that as it turns out I
    have been forced to fund Wax-Semus’ role as part of [Madisons’]
    litigation team. In particular, I think it is outrageous that I
    personally funded at least one half of Wax-Semus’[s] time in
    generating schedules that were later used to sue Mr. Spielfogel
    and Mr. Pastore.” Theodore further stated, “I personally have
    paid $193,347.87 to [Diamond] and [Danning Gill]. This does not
    include additional amounts that [Diamond] took from [Casa W].”
    5. Replies
    Mink argued, “First [Theodore] cites no case in which a
    lawyer’s communications with a court-appointed expert was held
    to be outside the anti-SLAPP statute or the litigation privilege.
    Second [Theodore] cites no case in which such conduct was held
    to be criminal.” Mink argued that Theodore “may not avoid the
    litigation privilege by charactering Mink’s conduct as criminal or
    a conspiracy” because “the gravamen of [Theodore’s] claim
    25
    against [the Madisons] is based solely on their communicative
    conduct in ongoing litigation.” In their reply, the Madisons
    pointed out Theodore’s argument that “the Madisons are
    vicariously liable for Mink’s communication because they are his
    client” was “unsupported by law or logic.” According to the
    Madisons, there was no authority for the proposition “that a
    client is vicariously liable for her attorney’s alleged torts or
    alleged ‘criminal conduct.’” The Madisons also argued that
    Theodore “provide[d] no evidence that any of the utterances
    complained of were criminal.” The Madisons further argued that
    Theodore’s attempt to relabel certain of the causes of action as
    breaches of a ‘“duty arising out of the partnership’ . . . doesn’t
    work” because each cause of action “rests on the same litigation-
    related conduct that is the gist of the pleading as a whole.”
    In her reply, Wax-Semus argued that she engaged in
    protected activities because “the conduct complained of by
    [Theodore] does not as a matter of law constitute a crime.” Wax-
    Semus added, “While the [trial court’s] findings of the court were
    sufficient to disqualify [Wax-Semus] as both the court appointed
    §639 referee and the court appointed §730 expert, those facts are
    not sufficient for a preliminary finding that [Wax-Semus]
    engaged in criminal activity.” Wax-Semus continued, “[T]he
    court may have found that she failed to abide by the standards
    imposed upon judicial officers, but did not find that her conduct
    was beyond judicial function. As such, her conduct is immune
    from liability as she was performing a quasi-judicial act.” Wax-
    Semus further argued, “[E]ven assuming that [Wax-Semus] has
    become the Madisons’ expert, which is not conceded, she is still
    protected from liability under the litigation privilege” because
    “under the litigation privilege, an adverse expert witness is
    26
    immune from liability for statements made in the court of the
    litigation.”
    D. Trial Court Rulings
    The trial court granted the three special motions to strike.
    In granting Mink’s special motion to strike the first amended
    complaint, by order dated May 30, 2018, the trial court ruled that
    the causes of action alleged against Mink arose from Mink’s
    “conduct as a lawyer in [the dissolution action]” and were based
    on Mink’s communications “with Wax-Semus regarding
    testimony in [the dissolution action]” and “with Diamond
    regarding liquidation and management of the subject property in
    [the dissolution action].” Because Mink’s communications with
    Wax-Semus and Diamond concerned “an issue under
    consideration or review by a judicial body,” Mink’s activities were
    protected under section 425.16, subdivision (e)(2). As to Theodore
    demonstrating a probability of prevailing on his claims, the trial
    court ruled, “[Theodore] does not demonstrate that the [first
    amended complaint] is legally sufficient. [Theodore] does not
    proceed through each cause of action and demonstrate that each
    essential element is pled in the Complaint. [Theodore] does not
    identify the elements in Penal Code sections 127, 133, 135, 484,
    and 496, or in Business and Professions Code section 6128, or for
    a RICO claim. Nor does [Theodore] identify the elements for
    aiding and abetting breach of fiduciary duty, conspiracy to
    defraud, constructive fraud, negligent misrepresentation, or
    conspiring to defraud.”
    The trial court further ruled, “[Theodore] offers no facts
    supporting the causes of actions in the opposition. [Theodore’s]
    statements are conclusory. Stating ‘there is a mountain of
    evidence’ is insufficient to establish any elements of the claims.
    27
    [Theodore’s] ‘Factual Statement’ section in [his] opposition does
    not provide sufficient facts for each element or tie any floating
    quote to an element of a cause of action. Further, the
    compendium of exhibits submitted appears to only show that
    Mink engaged in numerous ex parte communications with the
    third party neutral fraud examiner and liquidator. It is not clear,
    and would be a great leap to infer, that Mink aided and abetted
    or colluded with them to procure funds from [Theodore] under
    false pretenses, to defraud [Theodore], to breach their fiduciary
    duty to [Theodore], to interfere with their contract with
    [Theodore], to constructively defraud [Theodore], or for negligent
    misrepresentation.” The trial court concluded, “Accordingly,
    [Theodore] has not met his burden to demonstrate a probability
    of prevailing on its claims.”
    In the order dated June 6, 2018 granting Wax-Semus’s
    motion, the trial court ruled, “As for step one of the SLAPP
    analysis, the Court concludes that the SLAPP statute applies,
    including because moving party does not admit acting sufficiently
    illegally, and the evidence does not conclusively show it, as
    distinguished from disputes in the evidence. [¶] The SLAPP
    statute is inapposite to illegal speech, which means that the
    moving party concedes that its conduct was criminal, or that the
    evidence conclusively establishes it. . . . As for step two, the Court
    determines that judicial immunity, and the litigation privilege,
    are conclusively shown, without any applicable, and competently
    evidenced, exceptions. [¶] Specifically, [Theodore’s] allegations
    and evidence of communications amounting to ethics violations of
    ex parte communications and bias, and the conduct of overbilling
    that [Theodore] essentially calls false pretenses, nevertheless
    were associated with dealing with [Wax-Semus] while
    28
    functioning within court-authorized jurisdiction, as a court-
    appointed expert or referee, and involving inseparable
    communications in furtherance of litigation, such that immunity
    and the privilege apply.”
    Without setting forth its reasoning, by order dated May 31,
    2018, the trial court granted the Madisons’ special motion to
    strike. On June 15, 2018, the trial court sustained Diamond’s
    and Danning Gill’s demurrers to the first amended complaint
    without leave to amend and granted their motions to strike. On
    July 13, 2018, the trial court awarded Mink and the Madisons
    $23,212.50 in attorney fees and, on July 30, 2018, the trial court
    awarded Wax-Semus $31,980 in attorney fees and costs. On
    October 4, 2018, the trial court entered judgments against
    Theodore in favor of Mink, the Madisons, and Wax-Semus.
    In early 2020, Diamond and Danning Gill, on the one hand,
    and the Madisons and Theodore, on the other hand, settled their
    claims regarding the funds owing to Diamond and Danning Gill.
    By order dated May 19, 2020, this court dismissed Theodore’s
    appeal (B294219) based on the judgment dated October 4, 2018
    dismissing Theodore’s claims against Diamond and Danning Gill.
    Theodore timely appealed.
    DISCUSSION
    A. Section 425.16: The Anti-SLAPP Statute 10
    “‘Section 425.16 provides, inter alia, that “[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
    10    SLAPP is an acronym for “strategic lawsuit against public
    participation.” (Oasis West Realty, LLC v. Goldman (2011) 
    51 Cal.4th 811
    , 815, fn. 1.)
    29
    the United States or 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.””’
    (Newport Harbor Ventures, LLC v. Morris Cerullo World
    Evangelism (2018) 
    4 Cal.5th 637
    , 642 (Newport Harbor); accord,
    Sweetwater Union High School Dist. v. Gilbane Building Co.
    (2019) 
    6 Cal.5th 931
    , 938 (Sweetwater).) “Section 425.16
    ‘provides a procedure for weeding out, at an early stage, meritless
    claims arising from protected activity.’ [Citation.] ‘The
    Legislature enacted section 425.16 to prevent and deter “lawsuits
    [referred to as SLAPPs] brought primarily to chill the valid
    exercise of the constitutional rights of freedom of speech and
    petition for the redress of grievances.” [Citation.] Because these
    meritless lawsuits seek to deplete “the defendant’s energy” and
    drain “his or her resources” [citation], the Legislature sought “‘to
    prevent SLAPPs by ending them early and without great cost to
    the SLAPP target’” [citation]. Section 425.16 therefore
    establishes a procedure where the trial court evaluates the merits
    of the lawsuit using a summary-judgment-like procedure at an
    early stage of the litigation. [Citation.] In doing so, section
    425.16 seeks to limit the costs of defending against such a
    lawsuit.’” (Newport Harbor, at p. 642.)
    Courts evaluate a special motion to strike under section
    425.16 “through a two-step process. Initially, the moving
    defendant bears the burden of establishing that the challenged
    allegations or claims ‘aris[e] from’ protected activity in which the
    defendant has engaged.” (Park v. Board of Trustees of California
    State University (2017) 
    2 Cal.5th 1057
    , 1061 (Park); see Baral v.
    Schnitt (2016) 
    1 Cal.5th 376
    , 384 (Baral). “A claim arises from
    30
    protected activity when that activity underlies or forms the basis
    for the claim. [Citations.] 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.’
    [Citations.] . . . ‘The only means specified in section 425.16 by
    which a moving defendant can satisfy the [‘‘arising from’’]
    requirement is to demonstrate that the defendant’s conduct by
    which plaintiff claims to have been injured falls within one of the
    four categories described in subdivision (e). . . .’ [Citation.] In
    short, in ruling on an anti-SLAPP motion, courts should consider
    the elements of the challenged claim and what actions by the
    defendant supply those elements and consequently form the basis
    for liability.” (Park, at pp. 1062-1063.) “If the defendant carries
    its burden, the plaintiff must then demonstrate its claims have at
    least ‘minimal merit.’” (Id. at p. 1061; accord, Baral, at p. 384.)
    We review a trial court’s ruling on a special motion to
    strike under section 425.16 de novo. (Park, supra, 2 Cal.5th at
    p. 1067; accord, Sweetwater, 
    supra,
     6 Cal.5th at p. 940; see Moss
    Bros. Toy, Inc. v. Ruiz (2018) 
    27 Cal.App.5th 424
    , 433 [“we
    exercise our independent judgment in determining whether the
    challenged claim arises from protected activity”].) 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 Sweetwater, at p. 941; Park, at p. 1067; Equilon
    Enterprises v. Consumer Cause, Inc. (2002) 
    29 Cal.4th 53
    , 67;
    Moss Bros. Toy, Inc., at p. 433.) “We do not, however, weigh the
    evidence, but accept plaintiff’s submissions as true and consider
    only whether any contrary evidence from the defendant
    establishes its entitlement to prevail as a matter of law.” (Park,
    31
    at p. 1067; accord, Soukup v. Law Offices of Herbert Hafif (2006)
    
    39 Cal.4th 260
    , 269, fn. 3.)11
    B. The Complaint Arises From Protected Activity
    Section 425.16, subdivision (e), expressly defines an “‘act in
    furtherance of a person’s right of petition’” to include “any
    written or oral statement or writing made before a . . . judicial
    proceeding, or any other official proceeding authorized by law”
    and “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)(1), (2); see Newport Harbor, supra,
    4 Cal.5th at p. 642.) “‘Any act’ includes communicative conduct
    such as the filing, funding, and prosecution of a civil action
    [citation],” including “qualifying acts committed by attorneys in
    representing clients in litigation.” (Rusheen v. Cohen (2006)
    
    37 Cal.4th 1048
    , 1056; see Coretronic Corp. v. Cozen O’Connor
    (2011) 
    192 Cal.App.4th 1381
    , 1388 [“[t]he anti-SLAPP statutes
    11     Relying on Newport Harbor, supra, 
    4 Cal.5th 637
    , Theodore
    argues that the three special motions to strike were not timely
    filed. However, Wax-Semus, the Madisons, and Mink promptly
    filed their motions shortly after Theodore filed the complaint and
    first amended complaint. In Newport Harbor, the California
    Supreme Court held: “[A]s the trial court noted when it exercised
    its discretion to deny a late filing, much litigation, including
    discovery, had already been conducted for two years before the
    anti-SLAPP motion brought it to a halt. It is far too late for the
    anti-SLAPP statute to fulfill its purpose of resolving the case
    promptly and inexpensively. ‘An anti-SLAPP motion is not a
    vehicle for a defendant to obtain a dismissal of claims in the
    middle of litigation; it is a procedural device to prevent costly,
    unmeritorious litigation at the initiation of the lawsuit.’” (Id. at
    p. 645.) Here, there was no such delay or discovery taken.
    32
    protect not only the litigants, but also their attorneys’ litigation-
    related statements”].)
    Cases construing the anti-SLAPP statute hold that “a
    statement is ‘in connection with’ litigation under section 425.16,
    subdivision (e)(2), if it relates to the substantive issues in the
    litigation and is directed to persons having some interest in the
    litigation.” (Neville v. Chudacoff (2008) 
    160 Cal.App.4th 1255
    ,
    1266, 1270; accord, Briggs v. Eden Council for Hope &
    Opportunity (1999) 
    19 Cal.4th 1106
    , 1115; Crossroads Investors,
    L.P. v. Federal National Mortgage Assn. (2017) 
    13 Cal.App.5th 757
    , 779; Bergstein, supra, 236 Cal.App.4th at pp. 803-804.) In
    fact, courts have adopted “a fairly expansive view of what
    constitutes litigation-related activities within the scope of section
    425.16.” (Kashian v. Harriman (2002) 
    98 Cal.App.4th 892
    , 908;
    see Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 
    238 Cal.App.4th 200
    , 210 [‘“all communicative acts performed by
    attorneys as part of their representation of a client in a judicial
    proceeding or other petitioning context are per se protected as
    petitioning activity by the anti-SLAPP statute’”]; Kolar v.
    Donahue, McIntosh & Hammerton (2006) 
    145 Cal.App.4th 1532
    ,
    1537 [“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 . . .
    litigation”].)
    In Bergstein, supra, 
    236 Cal.App.4th 793
    , the plaintiffs
    sued lawyers who represented their adversaries in litigation
    concerning various financial transactions. The plaintiffs asserted
    that the lawyers engaged in tortious conduct when they “‘solicited
    and received . . . confidential, privileged, and/or proprietary
    information’” from plaintiffs’ former attorney and “used that
    33
    information ‘in devising the legal strategy to be employed’ in the
    litigation against plaintiffs.” (Id. at p. 797.) Effectively serving
    as plaintiffs’ general counsel, “[the former attorney] was
    intimately familiar with and had access to plaintiffs’ confidential,
    privileged and proprietary information, including core operating
    and financial documents, electronic records and other records,
    and was the custodian of critical documents related to plaintiffs.”
    (Id. at p. 798.) The plaintiffs alleged that the former attorney
    “‘worked hand-in-hand’” with the defendant lawyers preparing
    and orchestrating legal proceedings against plaintiffs using the
    privileged and confidential information. (Id. at pp. 800-801) The
    lawyers “attempted to hide their conduct” involving the plaintiffs’
    former attorney by channeling the email communications
    through an intermediary. (Id. at p. 801.)
    The trial court granted the defendant-lawyers’ special
    motion to strike under the anti-SLAPP statute, concluding that
    the complaint arose from protected activity. (Bergstein, supra,
    236 Cal.App.4th at p. 797.) The plaintiffs appealed, contending
    that the attorneys were not being sued for “any written or oral
    statement they made in a judicial proceeding,” but rather for the
    “unprotected conduct of aiding and abetting” the former
    attorney’s breach of fiduciary duties to plaintiffs, for “interfering”
    with the plaintiffs’ former attorney’s “contractual obligation” to
    maintain confidential information, and for interfering with
    plaintiffs’ “prospective economic advantage.” (Id. at p. 811.)
    Affirming the trial court, the court explained that the anti-
    SLAPP statute’s definitional focus “‘is not the form of the
    plaintiff’s cause of action but, rather, the defendant’s activity that
    gives rise to his or her asserted liability—and whether that
    activity constitutes protected speech or petitioning.’” (Ibid.) The
    34
    court examined “‘the specific acts of wrongdoing’ alleged, ‘without
    particular heed to the form of action within which it has been
    framed.’” (Ibid.) Plaintiffs alleged causes of action against
    defendants based on their use of known confidential and
    privileged information to prosecute their litigation attack. The
    court pointed out, [¶] “Plainly, ‘aiding and abetting the breach of
    [plaintiffs’ former attorney’s] fiduciary duties’ and ‘interfering
    with [that attorney’s] contractual obligation to [plaintiffs] to
    maintain their confidences’ are the causes of action plaintiffs
    assert, not the ‘specific acts of alleged wrongdoing’ that give rise
    to those causes of action.” (Ibid.) The court held, “Almost all of
    the ‘specific acts of alleged wrongdoing’ in the complaint [were]
    litigation activities.” (Ibid.) Holding that “it is precisely
    defendants’ advocacy on behalf of their clients in . . . litigation
    that forms the basis for all of plaintiffs’ causes of action,” the
    court concluded, “Defendants’ litigation activities are at the core
    of plaintiffs’ claims. Clearly those claims arise from protected
    activity within the meaning of the anti-SLAPP statute.” (Id. at
    pp. 811, 813.)
    Here, based on what he described as “rampant,”
    “pervasive,” and “illegal ex parte communications of a strategic
    and substantive nature” among defendants, Theodore filed this
    action challenging the manner in which the Evidence Code
    section 730 expert/referee and the court-appointed liquidator, as
    well as opposing parties and their counsel, conducted themselves
    in the dissolution action. Theodore asserted that defendants
    wrongfully excluded Theodore from their litigation
    communications, “teamed up” to prosecute the dissolution action
    against him, and disparaged Theodore in their communications.
    To plead his claims, Theodore used email communications among
    35
    defendants.12 Theodore’s claims would not exist in the absence of
    the communications. The communications were transmitted
    among persons having an interest in the dissolution action, and
    they solely concerned subjects at issue in the action. The actions
    that defendants took as a result of these communications, such as
    revising pleadings, requesting subpoenas and documents,
    reviewing document productions, making arguments in court and
    otherwise prosecuting the dissolution action, were protected
    petitioning activities. Mink’s alleged malicious filing of the
    conversion action against Spielfogel and Pastore was also
    protected petitioning activity.13
    Theodore’s claims were thus entirely premised on
    defendants’ litigation-related communications and activities.
    Accordingly, the trial court correctly concluded that Theodore’s
    claims “‘arise from’” and were “‘based’” on protected activity in
    connection with pending judicial matters. (See Navellier v.
    Sletten (2002) 
    29 Cal.4th 82
    , 89-90 [action alleging
    “misrepresentations and omission” in connection with the
    12    In his opposition to the special motions to strike, Spielfogel
    also quoted the emails at length in his declaration and attached
    300 pages of these communications.
    13    Theodore alleged further petitioning activity in connection
    with the dissolution action. He asserted that Wax-Semus,
    Diamond, and Danning Gill submitted excessive bills for their
    work in the dissolution action. In rejecting Theodore’s claim that
    Wax-Semus forfeit her fees, the trial court ruled Theodore could
    assert his objections at the conclusion of dissolution action
    pursuant to Evidence Code section 731. After the trial court
    rejected Theodore’s objections to Diamond’s and Danning Gill’s
    fees and ordered Theodore and the Madisons to pay them, the
    parties settled their claims regarding the fees.
    36
    execution of a release, the wrongful filing of a counterclaim
    containing the released claims, and false arguments in court
    about the released claims “falls squarely within the ambit of the
    anti-SLAPP statute ‘arising from’ prong”]; Optional Capital, Inc.
    v. Akin Gump Strauss, Hauer & Feld LLP (2017) 
    18 Cal.App.5th 95
    , 114-115 [“Plaintiff’s claims against Defendants [are] based on
    protected activity, namely Defendants’ representation of [their
    client] in litigation (the state court action and the federal
    forfeiture action)”]; JSJ Limited Partnership v. Mehrban (2012)
    
    205 Cal.App.4th 1512
    , 1521 [“[f]iling a lawsuit is an act in
    furtherance of the constitutional right of petition, regardless of
    whether it has merit”]; Booker v. Rountree (2007) 
    155 Cal.App.4th 1366
    , 1370 [“[T]here is no doubt the cross-complaint arises out
    the underlying litigation, so it is subject to the anti-SLAPP
    statute. [T]he claim is misconduct in the underlying litigation”];
    see also Jarrow Formulas, Inc. v. LaMarche (2003) 
    31 Cal.4th 728
    , 741 [malicious prosecution action by its very nature arises
    out of defendant’s constitutionally protected petitioning activity
    (the underlying lawsuit)].)
    Theodore does not challenge that his claims were based on
    defendants’ communications and litigation conduct.14 Rather,
    14    Citing Optional Capital, Inc. v. DAS Corp. (2014) 
    222 Cal.App.4th 1388
     (Optional Capital), Theodore suggests that “[a]
    conspiracy and a course of conduct are independent non-
    communicative acts not within the purview of [Civil Code] § 47 or
    Section 425.16.” Theodore also suggests, citing Greco v. Greco
    (2016) 
    2 Cal.App.5th 810
    , that the “wrongful taking of money is
    not protected activity.” However, neither Optional Capital nor
    Greco supports Theodore’s broad assertions. In Optional Capital,
    the court held that a conspiracy “to assert dominion and control
    over the funds in which [plaintiff] has a judgment lien and
    37
    Theodore argues, “Because § 425.16 does not apply to criminal
    conduct, the Trial Court did not even have to go the second step
    of the analysis.” Theodore contends that Wax-Semus, Diamond,
    and Danning Gill violated Penal Code section 484. According to
    Theodore, “PC Section 484 makes it a crime to procure money or
    property under false pretenses,” and “the procurement of money,
    including money paid consensually, violates section 484.”
    Because section 484 “is linked to [Penal Code] section 496 which
    specifies that anyone who aides the perpetrator of the theft is
    also liable,” the Madisons and Mink also committed crimes.
    Theodore further argues that the lawyer-defendants—Kyle,
    Mink, Diamond, and Danning Gill—“specifically violated
    [Business and Professions Code] section 6128, to the effect that
    an attorney was guilty of a misdemeanor if he engages in deceit
    transfer of those funds out of [plaintiff’s] reach in violation of
    rights as a judgment creditor” alleged “an independent,
    noncommunicative, wrongful act.” (Optional Capital, at p. 1405.)
    The court held that the complaint “seek[ing] to recover monies
    looted” from plaintiff did not arise from litigation. (Id. at pp.
    1400-1401.) In Greco, the court held that the gravamen of the
    plaintiff’s claims was “the alleged wrongful taking [of money]
    from the trust and estates.” (Id. at p. 815.) The conduct was not
    protected activity because plaintiff’s “claim for recovery was not
    based on the wrongful act of pursuing meritless or wasteful
    litigation, but on taking trust and estate funds.” (Id. at p. 823.)
    Here, Wax-Semus’s and Diamond’s payments were part of the
    dissolution action because the trial court approved the payments.
    Further, “labels” such as “conspiracy” and “aided and abetted”
    have little relevance in determining whether activity is protected
    under section 425.16. (Contreras v. Dowling (2016) 
    5 Cal.App.5th 394
    , 410.)
    38
    or collusion or consents to deceit or collusion with intent to
    deceive a court or a party.”
    Throughout his opening brief, Theodore asserts that Wax-
    Semus, Mink, and the Madisons “violated criminal statutes.” He
    maintains that the Spielfogel declaration and its attachments
    establish the criminal conduct. While it is true that a special
    motion to strike cannot be used by a defendant whose allegedly
    protected activity was illegal (Flatley, supra, 39 Cal.4th at
    p. 320), Theodore’s illegality arguments do not assist him. In
    Flatley, the California Supreme Court held “where a defendant
    brings a motion to strike under section 425.16 based on a claim
    that the plaintiff’s action arises from activity by the defendant in
    furtherance of the defendant’s exercise of protected speech or
    petition rights, but either the defendant concedes, or the evidence
    conclusively establishes, that the assertedly protected speech or
    petition activity was illegal as a matter of law, the defendant is
    precluded from using the anti-SLAPP statute to strike the
    plaintiff’s action.” 15 (Ibid.) This is because a defendant whose
    15     In Flatley, the plaintiff, a well-known entertainer, filed an
    action against an attorney, alleging causes of action for civil
    extortion, intentional infliction of emotional distress and
    wrongful interference with economic advantage. The plaintiff’s
    causes of action were based on a letter from the lawyer
    threatening to make public a rape allegation unless the plaintiff
    paid a “‘settlement of $100,000,000.00.’” (Flatley, supra, 39
    Cal.4th at pp. 305-308.) The defendant lawyer admitted writing
    letters and making calls to the plaintiff and his attorneys. The
    Supreme Court concluded that “based on the specific and extreme
    circumstances of the case,” the defendant’s conduct therein,
    which amounted to “criminal extortion as a matter of law,” was
    not entitled to the protection of the anti-SLAPP statute. (Id. at
    p. 332, fn. 16.)
    39
    assertedly protected activity is “illegal as a matter of law” is “not
    protected by constitutional guarantees of free speech and
    petition.” (Id. at p. 317.) Illegal in this context “refers to criminal
    conduct; merely violating a statute is not sufficient . . . .” (Aron v.
    WIB Holdings (2018) 
    21 Cal.App.5th 1069
    , 1083; Collier v. Harris
    (2015) 
    240 Cal.App.4th 41
    , 55; Mendoza v. ADP Screening &
    Selection Services, Inc. (2010) 
    182 Cal.App.4th 1644
    , 1654.)
    Furthermore, if “a factual dispute exists about the legitimacy of
    the defendant’s conduct, it cannot be resolved within the first
    step [of the anti-SLAPP analysis] but must be raised by the
    plaintiff in connection with the plaintiff’s burden to show a
    probability of prevailing on the merits.” (Flatley, at p. 316;
    see Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 
    193 Cal.App.4th 435
    , 446 [“[w]e understand Flatley to stand for this
    proposition: when a defendant’s assertedly protected activity
    may or may not be criminal activity, the defendant may invoke
    the anti-SLAPP statute unless the activity is criminal as a
    matter of law”].)
    Court after court has recognized that the Flatley exception
    is a “narrow” one to be applied only when the defendant concedes
    the illegality or the evidence “conclusively establishes” illegality
    “as a matter of law.” (Optional Capital, Inc. v. Akin Gump
    Strauss Haver & Feld LLP, supra, 18 Cal.App.5th at p. 115, fn. 7
    [“[a] long line of cases have concluded in the wake of Flatley that
    its exception for illegal conduct is a ‘very narrow’ one”]; Bergstein,
    supra, 236 Cal.App.4th at p. 806 [“case authorities after Flatley
    have found the Flatley rule applies only to criminal conduct, not
    to conduct that is illegal because in violation of statute or
    common law”]; Zucchet v. Galardi (2014) 
    229 Cal.App.4th 1466
    ,
    1478 [“the exception for illegal activity is very narrow and
    40
    applies only in undisputed cases of illegality”]; Cross v. Cooper
    (2011) 
    197 Cal.App.4th 357
    , 384, 386 [characterizing the Flatley
    circumstances as “narrow” and also concluding this was not “one
    of those rare cases in which there is uncontroverted and
    uncontested evidence that establishes the crime as a matter of
    law”].)
    Defendants did not concede the alleged illegality, and
    Theodore’s evidence of criminal conduct is far from conclusive
    that defendants’ litigation-related activities were illegal. Indeed,
    rather than point to a concession of illegality or show illegal
    conduct as a matter of law, Theodore repeatedly conceded in the
    trial court that “each cause of action” contained “provable
    allegations” of criminal conduct.16 For example, Theodore argues
    16     In Towner v. County of Ventura (2021) 
    63 Cal.App.5th 761
    this court held that plaintiff “carried his burden to show the
    alleged conduct of the County defendants underlying his third
    and fifth causes of action was illegal as a matter of law under
    Flatley because it constituted a willful omission to perform a
    public duty enjoined by law (Gov. Code, § 1222), and was
    therefore not protected activity under the anti-SLAPP statute.”
    (Towner, at p. 774.) In Towner, defendants chose not to factually
    contest the alleged illegality and conceded they willfully did not
    follow the requirements of Government Code section 1222.
    Instead, defendants in Towner asserted a legal argument; they
    were not obligated to comply with their public duty because they
    qualified for a statutory exception. (Id. at p. 767-768.) In holding
    that the conduct “was illegal as a matter of law,” we rejected
    defendants’ reliance on the “limited exception.” (Id. at p. 770-
    774.) In contrast, here the illegality of defendants’ conduct does
    not turn on a legal question of statutory interpretation. To the
    contrary, Theodore argued that defendants’ criminal conduct was
    factually “provable.”
    41
    that the attorney-defendants violated Business and Professions
    Code section 6128, which provides: “Every attorney is guilty of a
    misdemeanor who either: [¶] (a) Is guilty of any deceit or
    collusion, or consents to any deceit or collusion, with intent to
    deceive the court or any party . . . .” However, excluding
    Spielfogel from litigation communications does not establish
    illegality as a matter of law. (Flatley, supra, 39 Cal.4th at p. 320;
    see Seltzer v. Barnes (2010) 
    182 Cal.App.4th 953
    , 965 [factually
    disputed allegation of attorney fraud under Bus. & Prof. Code,
    § 6128 insufficient to meet Flatley standard of illegality].)
    Among other things, Theodore has not presented evidence
    that the attorney-defendants acted with an “intent to deceive.”17
    Based on the content of their communications, it is reasonable to
    infer that the attorney-defendants believed that Theodore was
    withholding information concerning Casa W and that he likely
    had misappropriated Casa W funds.18 The communications
    reveal an effort to locate documents and funds and advance the
    dissolution action. While Mink’s and Kyle’s failure to include
    Spielfogel on their communications with Wax-Semus and
    Diamond was “deeply troubling” to the trial court, Theodore has
    17     Based on a remark that Mink made at Diamond’s
    deposition in the dissolution action, Theodore states that “Mink
    admitted he was receiving a 10% kickback from amounts paid to
    Diamond.” As Mink explained in a declaration, he made a
    “facetious remark”—“Less my 10 percent.” Diamond testified
    that he was not paying Mink anything, and there is no evidence
    of any payments.
    18     There is a $3.9 million judgment against Theodore based on
    the trial court’s finding that Theodore breached his fiduciary duty
    owing to the Madisons.
    42
    not conclusively established criminal conduct. (See Fremont
    Reorganizing Corp. v. Faigin (2011) 
    198 Cal.App.4th 1153
    , 1169
    [anti-SLAPP statute not inapplicable because attorney’s
    unethical conduct did not rise to “criminal conduct”]; Cabral v.
    Martins (2009) 
    177 Cal.App.4th 471
    , 477 [litigation conduct by
    attorneys allegedly in violation of statutes authorizing treble
    damages for assisting in the evasion of child support obligations
    was not “illegal” within the meaning of the rule from Flatley];
    Birkner v. Lam (2007) 
    156 Cal.App.4th 275
    , 285 [“‘[c]onduct that
    would otherwise come within the scope of the anti-SLAPP statute
    does not lose its coverage . . . simply because it is alleged to have
    been unlawful or unethical’”].)
    Nor has Theodore conclusively established criminal conduct
    under Penal Code sections 484 and 496. Section 484, subdivision
    (a), provides, “Every person . . . who shall knowingly and
    designedly, by any false or fraudulent representation or pretense,
    defraud any other person of money, labor or real or personal
    property . . . is guilty of theft.” (See People v. Gomez (2008) 
    43 Cal.4th 249
    , 255, fn. 4 [“[i]n 1927, the crimes of theft by larceny,
    embezzlement, and false pretenses were consolidated in section
    484”].) Given that the trial court appointed Wax-Semus and
    Diamond and ordered Theodore and the Madisons to make
    payments to them, Theodore has not conclusively established the
    crime of theft based on these court-ordered payments. Also,
    Theodore has not conclusively established that Mink and the
    Madisons received “stolen property” in violation of Penal Code
    section 496, subdivision (a). “In order to establish the
    commission of the crime of receiving stolen property on a theory
    of a larcenous taking, it must be established by substantial
    evidence (1) that the particular property was stolen, (2) that the
    43
    accused received, concealed or withheld it from the owner thereof,
    and (3) that the accused knew that the property was stolen.”
    (People v. Moses (1990) 
    217 Cal.App.3d 1245
    , 1250.) Among other
    things, Theodore has not identified the “stolen property” that
    Mink and the Madisons allegedly received. (See Switzer v. Wood
    (2019) 
    35 Cal.App.5th 116
    , 127 [“[a] violation of section 496(a)
    may, by its own terms, relate to property that has been ‘stolen’ or
    ‘that has been obtained in any manner constituting theft or
    extortion’”].)19
    While Mink’s and Kyle’s tactics in the dissolution action
    leave a lot to be desired, they were protected activity under
    section 425.16. (See Summerfield v. Randolph (2011) 
    201 Cal.App.4th 127
    , 136 [allegedly false affidavits filed in support of
    litigation constitute protected activity]; Haight Ashbury Free
    Clinics, Inc. v. Happening House Ventures (2010) 
    184 Cal.App.4th 1539
    , 1549 [“whether or not a defendant’s statements were false
    does not determine whether they constitute protected activity for
    purposes of the SLAPP statute” because the statute “pertains to
    ‘any written or oral statement or writing made in connection with
    an issue under consideration or review by a judicial body’”].)
    19     The California Supreme Court granted review in Siry
    Investment, L.P. v. Farkhndehpour, S262081, on May 8, 2020,
    and asked the parties to brief and argue issues including: “May a
    trial court award treble damages and attorney fees under Penal
    Code section 496, subdivision (c), in a case involving the
    fraudulent diversion of business funds rather than trafficking in
    stolen goods?”
    44
    C. Theodore Failed To Demonstrate a Probability of
    Prevailing on His Claims
    1. Theodore Failed To Establish That His Claims Were
    Legally Sufficient and Supported by a Sufficient
    Prima Facie Showing of Facts
    If the defendant makes a prima facie showing that the
    plaintiff’s claims arises from constitutionally protected
    petitioning or free speech activity, then the burden shifts to
    plaintiff to establish, with admissible evidence, a “probability” of
    prevailing on the claims challenged by the anti-SLAPP motion.
    (See § 425.16, subd. (b); Sweetwater, 
    supra,
     6 Cal.5th at p. 940;
    Baral, supra, 1 Cal.5th at p. 384.) At step two, the burden is on
    the plaintiff to show that it has “stated and substantiated a
    legally sufficient claim.” (Briggs v. Eden Council for Hope &
    Opportunity, supra, 19 Cal.4th at p. 1123; accord, Rosenthal v.
    Great Western Fin. Securities Corp. (1996) 
    14 Cal.4th 394
    , 412.)
    “The court does not weigh 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, supra, 1
    Cal.5th at pp. 384-385; accord, Wilson v. Parker, Covert &
    Chidester (2002) 
    28 Cal.4th 811
    , 821.) Accordingly, as explained
    in Baral, the second step of the analysis under section 425.16
    requires a plaintiff to separately establish 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.” (Baral, at p. 392.)
    In granting the special motions to strike, the trial court
    found, “[Theodore] does not demonstrate the [first amended
    complaint] is legally sufficient. [Theodore] . . . does not
    demonstrate that each essential element is pled. . . . [¶]
    45
    [Theodore] offers no facts supporting the causes of action. . . .
    Stating ‘there is a mountain of evidence’ is insufficient to
    establish any elements of the claims.” In the trial court,
    Theodore’s conclusory approach to legal sufficiency and his
    “mountain of evidence” argument failed to make the required
    showing. Here, Theodore continues in the same deficient
    conclusory fashion, without citation to pertinent legal authority
    or a discussion of the elements of his claims, arguing that he
    established their legal sufficiency. His argument that the
    evidence is “overwhelming,” with citation to virtually the entire
    record, is not a prima facie showing of merit. Theodore has thus
    not carried his burden to demonstrate a probability of prevailing
    on his claims. (See Baral, supra, 1 Cal.5th at pp. 384-385 [the
    court’s 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”].)
    For example, regarding the first and second causes of
    action against Wax-Semus for fraud and negligent
    misrepresentation, Theodore states: “The essence of these counts
    is that Wax-Semus, in conspiracy with, and aided and abetted by,
    Mink and Kyle engaged in rampant acts of misconduct designed
    to procure funds from Theodore under false pretenses. . . . [¶]
    Wax-Semus was supposed to be an independent agent of the
    court. Instead, as [the trial court] found, Wax-Semus was not
    independent, but became a part of the Madisons’ litigation team.
    Adding insult to injury, Theodore lost over $124,000, as a result
    of the conspiracy and severe misconduct by Wax-Semus, Mink
    and Kyle.” Theodore then cites to several hundred pages of the
    record, including all the attachments to the Spielfogel
    46
    declaration. Theodore’s complaint is little help in attempting to
    identify the elements of these claims.
    Among other deficiencies, Theodore has not set forth the
    alleged misrepresentations to support these claims with the
    required specificity. (See Tenet Healthsystem Desert, Inc. v. Blue
    Cross of California (2016) 
    245 Cal.App.4th 821
    , 837-838 [“[f]raud
    must be pleaded specifically with facts showing how, when,
    where, to whom, and by what means representations are
    tendered; general and conclusory allegations do not suffice”];
    Daniels v. Select Portfolio Servicing, Inc. (2016) 
    246 Cal.App.4th 1150
    , 1167 [“[c]auses of action for intentional and negligent
    misrepresentation sound in fraud and, therefore, each element
    must be pleaded with specificity”].) By citing to virtually the
    entire record for factual support as he did in the trial court,
    Theodore fails to make a prima facie factual showing in support
    of the claims sufficient to sustain a judgment. Therefore,
    Theodore did not carry his burden to show a probability of
    success on the merits. Theodore makes the same deficient
    showing regarding his claim that Mink and the Madisons aided
    and abetted Wax-Semus in connection with these causes of
    action. Similarly, Theodore fails to make the requisite showing
    regarding the twenty-second cause of action against Mink and
    the Madisons for aiding and abetting Diamond’s alleged fraud.
    Regarding the eighth cause of action against Wax-Semus
    for interference with the contract between Theodore and the
    Madisons, Theodore states, “Wax-Semus promised to be neutral
    and ethical. Even if she did not so contract, she was required to
    be neutral and ethical by operation of law.” Theodore refers to
    the same several hundred pages of the record. Theodore’s
    conclusory statements, without legal citations, thus fail to
    47
    demonstrate a legally sufficient claim against Wax-Semus.
    Theodore has not explained how Wax-Semus could have
    interfered with the Casa W agreement given that Wax-Semus
    only became involved after the trial court appointed her to
    conduct a forensic accounting analysis in the dissolution action.
    Theodore makes similar conclusory statements and references
    regarding the nineteenth cause of action against Mink and the
    Madisons for interfering with Theodore’s alleged contracts with
    Wax-Semus and Diamond. Theodore provides no legal authority
    supporting the viability of these claims or any discussion of
    evidence. Theodore does not identify his alleged contracts with
    Diamond and Wax-Semus.20
    20     In his twenty-first cause of action against the Madisons for
    “defamation/false light,” Theodore alleged that Kyle engaged in
    “defamation per se” of Theodore “and placed him in false light by
    falsely advising a prominent property management firm that
    [Theodore] had misappropriated funds, and had engaged in other
    corrupt and unethical acts.” Theodore repeats this allegation in
    his opening brief without any more specificity concerning what
    Kyle allegedly communicated, the date of the communication, or
    the recipients of the communication. Theodore failed to establish
    the legal sufficiency of this cause of action. (See Ellenberger v.
    Espinosa (1994) 
    30 Cal.App.4th 943
    , 951 [“plaintiff's complaint is
    defective because it ‘“‘does not allege either the specific words or
    the substance of [the] statements . . . but instead merely alleges
    the conclusions of the pleader that statements were made which
    ‘intimated and suggested’ that plaintiff had done certain
    wrongful things’””]; see also Smith v. Maldonado (1999) 
    72 Cal.App.4th 637
    , 646 [“[i]n all cases of alleged defamation,
    whether libel or slander, the truth of the offensive statements or
    communication is a complete defense against civil liability,
    regardless of bad faith or malicious purpose”].) Nor did Theodore
    48
    Regarding the ninth and tenth causes of action against
    Mink for aiding and abetting Diamond’s breach of fiduciary duty
    and constructive fraud, Theodore states: “[He] presented
    substantial evidence by which the trier of fact could conclude that
    Mink aided and abetted breaches of fiduciary duty and
    constructive fraud by Diamond.” However, in addition to his
    failure to identify relevant legal authority, Theodore does not
    explain how he can state a legally sufficient claim for breach of
    fiduciary duty against a court-appointed liquidator. (See Howard
    v. Drapkin (1990) 
    222 Cal.App.3d 843
    , 858-859 [quasi-judicial
    immunity afforded to “court-appointed persons (such as . . .
    receivers)”].) The trial court appointed Diamond with broad
    authority “to wind up all [Casa W] affairs” “in his sole discretion”
    and approved Diamond’s fees after rejecting Theodore’s
    objections. Theodore also did not identify a “confidential
    relationship” that could support Diamond’s fiduciary duty. (See
    GAB Business Services, Inc. v. Lindsey & Newsom Claim
    Services, Inc. (2000) 
    83 Cal.App.4th 409
    , 417 [“[a] fiduciary duty
    is undertaken by agreement when one person enters into a
    confidential relationship with another . . . a confidential
    relationship arises ‘where a confidence is reposed by one person
    in the integrity of another, and . . . the party in whom the
    confidence is reposed, . . . voluntarily accepts or assumes to
    accept the confidence”’].)21 Nor has Theodore adequately
    make any prima facie factual showing regarding this cause of
    action.
    21   Traditional examples of fiduciary relationships in the
    commercial context include trustee/beneficiary, directors and
    majority shareholders of a corporation, business partners, joint
    venturers, and agent/principal. (See, e.g., Evangelho v. Presoto
    49
    supported a legally sufficient claim for constructive fraud against
    Diamond. (See Michel v. Moore & Associates, Inc. (2007) 
    156 Cal.App.4th 756
    , 762 [““‘[c]onstructive fraud is a unique species
    of fraud applicable only to a fiduciary or confidential
    relationship”’”].)22
    (1998) 
    67 Cal.App.4th 615
    , 621 [trustee and beneficiary]; Jones v.
    H.F. Ahmanson & Co. (1969) 
    1 Cal.3d 93
    , 108-109 [controlling
    shareholder of corporation]; April Enterprises, Inc. v. KTTV
    (1983) 
    147 Cal.App.3d 805
    , 818-819 [joint venturers]; Michelson
    v. Hamada (1994) 
    29 Cal.App.4th 1566
    , 1580 [agent/principal].)
    22     With regard to the sixteenth and seventeenth causes of
    action for breach of fiduciary duty and constructive fraud against
    the Madisons, Theodore argues, “The Madisons were Theodore’s
    partners and as such owed Theodore a fiduciary duty. . . . Mink
    was the agent of the Madisons. . . . The Madisons, individually,
    and aided and abetted by Mink, breached [their] fiduciary duty
    owed to Theodore.” As with the other breach of fiduciary duty
    and constructive fraud causes of action, Theodore fails to
    demonstrate legal sufficiency and cites to voluminous parts of the
    record. While the Madisons and Theodore were members of Casa
    W before the trial court dissolved it, Theodore does not explain
    how a fiduciary duty among them would govern their conduct as
    adversaries in litigation. Theodore makes similar deficient
    showings in support of the sixteenth cause of action against Wax-
    Semus and Mink for aiding and abetting the Madisons’ alleged
    breach of fiduciary duty and the seventeenth cause of action
    against Mink for aiding and abetting the Madisons’ breach of
    fiduciary duty and constructive fraud. Theodore’s eighteenth
    cause of action against the Madisons for breach of the contract is
    also legally insufficient. Theodore fails to explain how the
    Madisons’ prosecution of the dissolution action against him was a
    breach of a contract.
    50
    Regarding the twentieth cause of action “for wrongful
    appointment of the liquidator” asserted against the Madisons,
    after referring to a prior part of his opening brief,23 Theodore
    asserts, “Diamond owed a fiduciary obligation to Theodore. The
    Madisons and Mink engaged in rampant misconduct, including
    transmitting highly disparaging and inaccurate ex parte
    communications and directing Diamond to do things to help the
    Madisons prosecute their claims against Theodore.” Theodore
    again does not demonstrate the basis for Diamond’s fiduciary
    duty or how Diamond’s alleged fiduciary duty supports this
    claim. Theodore does not explain why his concerns about
    Diamond’s conduct as the liquidator, which the trial court
    rejected in the dissolution action, can form the basis for claims
    against the Madisons and Mink in this action. As with his other
    causes of action, Theodore does not cite any legal authority to
    support this cause of action and generally cites to hundreds of
    record pages as evidence.
    As to the twenty-third cause of action for RICO violations
    alleged against Diamond and Danning Gill aided and abetted by
    Mink and the Madisons,24 after citing to virtually the entire
    23     The referenced part of Theodore’s opening brief states: “If
    the receivership was unnecessary and wrongfully obtained,
    liability for the expenses and fees is properly placed upon the
    party who caused the unnecessary and wrongful appointment[]”.
    See, Smith v. Hill (1965) 
    237 Cal.App.2d 374
    , 387, Stanton v.
    Pratt (1941) 
    18 Cal.2d 599
    , 603 and Lewis v. Hall (1918) 38
    Cal.App.329, 336.”
    24   Although the heading for this cause of action does not
    mention Wax-Semus, Theodore included allegations against Wax-
    Semus in this cause of action.
    51
    record, Theodore contends, “Theodore proved that Mink provided
    substantial support and assistance to both Wax-Semus and
    Diamond, in generating false bills and thereby aided and abetted
    them relative to their respective RICO violations.” Regarding the
    Madisons, Theodore adds: “Theodore alleged in the [first
    amended complaint] that Diamond and [Danning Gill] (which is a
    separate entity from Diamond) had for decades engaged in a
    nefarious scheme to pilfer proceeds of disputed ‘estates’ as a
    receiver, a bankruptcy trustee and/or a liquidator and that
    Diamond/[Danning Gill] had acted with Mink on other legal cases
    where Diamond would be appointed as Receiver, bankruptcy
    trustee or liquidator. . . .[¶] Theodore proved that the Madisons
    and Mink provided substantial support and assistance to Wax-
    Semus and Diamond in generating false bills, and thereby aided
    and abetted them relative to their respective RICO violations.”
    The RICO statutes allow individuals to file suit and recover
    treble damages against individuals who, through a “pattern of
    racketeering activity,” acquire an interest in, or conduct the
    business of, an enterprise engaged in interstate or foreign
    commerce. (
    18 U.S.C. §§ 1962
    (b), 1962(c), 1964(d).) Section
    1962(c) prohibits conducting the affairs of an enterprise engaged
    in interstate or foreign commerce through a pattern of
    racketeering activities. To state a RICO claim under section
    1962(c), a plaintiff must allege: “(1) conduct (2) of an enterprise
    (3) through a pattern (iv) of racketeering activity” and (v) injury
    in the plaintiffs’ business or property by the conduct constituting
    the violation. (Sedima, S.P.R.L. v. Imrex Co., Inc. (1985) 
    473 U.S. 479
    , 496; Sanford v. MemberWorks, Inc., (9th Cir. 2010) 
    625 F.3d 550
    , 557, 559.) ‘“The touchstone of [Section 1962(c)] is that each
    individual defendant must be shown to have personally
    52
    participated in a pattern of racketeering activity.’” (Committee to
    Protect Our Agric. Water v. Occidental Oil and Gas Corp. (E.D.
    Cal. 2017) 
    235 F.Supp.3d 1132
    , 1172 (Committee to Protect).)
    Proper pleading of a pattern of racketeering activity
    requires the plaintiff to allege at least two predicate acts that are
    interrelated by distinguishing characteristics and amount to or
    pose a threat of continued criminal activity. (Charles J. Vacanti,
    M.D., Inc. v. State Comp. Ins. Fund (2001) 
    24 Cal.4th 800
    , 826;
    accord, Turner v. Cook (9th Cir. 2004) 
    362 F.3d 1219
    , 1229;
    Committee to Protect, supra, 235 F.Supp.3d at p. 1177.)
    Conclusory allegations of two predicate acts are legally
    insufficient to properly plead a pattern of racketeering activity.
    (Rosenthal v. Vogt (1991) 
    229 Cal.App.3d 69
    , 77; accord, Schreiber
    Distributing v. Serv-Well Furniture Co. (9th Cir. 1986) 
    806 F.2d 1393
    , 1401.)
    The RICO statute defines “enterprise” to include “any
    individual, partnership, corporation, association, or other legal
    entity, and any union or group of individuals associated in fact
    although not a legal entity.” (
    18 U.S.C. § 1961
    (4).) To show an
    association-in-fact enterprise, plaintiff must plead three
    elements. First, plaintiffs must plead a common purpose.
    (Eclectic Props. E., LLC v. Marcus & Millichap Co. (9th Cir. 2014)
    
    751 F.3d 990
    , 997 (Eclectic Props. E.); Odom v. Microsoft Corp.
    (9th Cir. 2007) 
    486 F.3d 541
    , 552.) To show a common purpose,
    plaintiff must allege that the group engaged in enterprise
    conduct distinct from their own affairs. Second, plaintiff must
    plead an ongoing structure or organization to the enterprise,
    which may be either formal or informal. (United States v.
    Turkette (1981) 
    452 U.S. 576
    , 583; Eclectic Props. E., at p. 997;
    Ellis v. J.P. Morgan Chase & Co. (N.D. Cal. 2013) 
    950 F.Supp.2d 53
    1062, 1089.) Third, plaintiff must plead that the enterprise had
    the longevity necessary to accomplish its purpose. (Eclectic
    Props. E., at p. 997; Odom v. Microsoft, at p. 552.) Finally,
    plaintiff must allege facts indicating that the alleged associates
    in the enterprise, over time, “function[ed] as a continuing unit.”
    (United States v. Turkette, at p. 583.)
    In his opening brief, Theodore’s only mention of the
    defendants in connection with the elements required for a RICO
    violation is: “Per 
    18 USC § 1961
    (4), Diamond, [Danning Gill] and
    Wax-Semus engaged in an ‘enterprise’ defined as ‘any individual,
    partnership, corporation, association or other legal entity, and
    any union or group of individuals associated in fact although not
    a legal entity.’ Hence, said Respondents clearly qualify as an
    enterprise.” Likewise, in his complaint, Theodore did not even
    begin to adequately plead the required “enterprise.” Theodore
    concluded that Wax-Semus and Diamond “engaged in an
    enterprise of great longevity” without any supporting facts.
    Theodore also fails to identify any predicate acts. Theodore’s
    complaint stated that Diamond and Danning Gill “engaged in
    literally tens if not hundreds of activities constituting
    racketeering activities per RICO,” but did not identify any.
    Theodore failed to establish that he plead a legally sufficient
    RICO cause of action. He also failed to make the required prima
    facie factual showing.25
    25     In Premier Medical Management Systems, Inc. v. California
    Ins. Guarantee Assn. (2006) 
    136 Cal.App.4th 464
    , the court
    reversed a trial court’s denial of an anti-SLAPP motion
    challenging a complaint that included a cause of action alleging
    RICO violations and thereby struck the RICO cause of action.
    (Id. at pp. 470, 480.) Without reaching whether the litigation
    54
    In sum, for all the causes of action in his complaint,
    Theodore fails to show that they are legally sufficient or that
    there is sufficient evidence to establish a prima facie case.26
    privilege of Civil Code section 47, subdivision (b), barred
    plaintiffs’ RICO claims, the Premier Medical court held that the
    Noerr-Pennington doctrine precluded plaintiffs’ claims. (Id. at p.
    478; see Sosa v. DIRECTV, Inc. (9th Cir. 2006) 
    437 F.3d 923
    ,
    930–933, 942 [Noerr-Pennington doctrine barred RICO claim
    based on “prelitigation demand to settle legal claims” because the
    “doctrine requires that, to the extent possible, we construe
    federal statutes so as to avoid burdens on activity arguably
    within the scope of the Petition Clause of the First
    Amendment”].) The Noerr-Pennington doctrine is based on the
    right to petition the government under the First Amendment to
    the United States Constitution. It originated in cases
    interpreting the federal antitrust laws to exclude liability for
    concerted action in connection with petitioning the government.
    (See Eastern R. Pres. Conf. v. Noerr Motor Frgt., Inc. (1961) 
    365 U.S. 127
    , 136; United Mine Workers v. Pennington (1965) 
    381 U.S. 657
    , 670.) This immunity was later applied to “situations
    where groups ‘use . . . courts to advocate their causes and points
    of view respecting resolution of their business and economic
    interests vis-à-vis their competitors.’” (BE & K Constr. Co. v.
    NLRB (2002) 
    536 U.S. 516
    , 525.) In Ludwig v. Superior Court
    (1995) 
    37 Cal.App.4th 8
    , the court explained: “Obviously, ‘“the
    principle of constitutional law that bars litigation arising from
    injuries received as a consequence of First Amendment
    petitioning activity [should be applied], regardless of the
    underlying cause of action asserted by the plaintiffs.” [Citation.]
    “[T]o hold otherwise would effectively chill the defendants’ First
    Amendment rights.’”” (Id. at p. 21, fn. 17.)
    26    As stated, Theodore fails to cite any relevant legal
    authority to support the causes of action based on Penal Code
    sections 484 and 496. He also fails to make a prima facie factual
    55
    Accordingly, Theodore failed to carry his burden to demonstrate a
    probability of prevailing on his claims. (See Taus v. Loftus (2007)
    
    40 Cal.4th 683
    , 714 [claim based on protected activity is “stricken
    if the plaintiff is unable to demonstrate both that the claim is
    legally sufficient and that there is sufficient evidence to establish
    a prima facie case with respect to the claim”]; Contreras v.
    Dowling, supra, 5 Cal.App.5th at p. 405 [“‘[a]n anti-SLAPP
    motion is an evidentiary motion’”].)
    2. Theodore’s Claims Are Barred by the Litigation
    Privilege
    Mink and the Madisons contend that, even if Theodore had
    supported his claims, Theodore cannot show a probability of
    success because his claims are barred by the litigation privilege
    in Civil Code section 47. Section 47, subdivision (b)(2), creates an
    absolute litigation privilege, barring all tort claims other than for
    malicious prosecution based on statements or other
    communications made in a judicial proceeding. (Flatley, supra,
    39 Cal.4th at p. 322; Hagberg v. California Federal Bank (2004)
    
    32 Cal.4th 350
    , 360, superseded by in part by statute as stated in
    Tuomela v. Waldorf-Astoria Grand Wailea Hotel (D. Haw. Jan.
    22, 2021, No. 20-00117 JMS-RT) 
    2021 U.S. Dist. LEXIS 12634
    , at
    *13.) “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 v. Anderson (1990) 
    50 Cal.3d 205
    , 213.) The privilege also “promotes the effectiveness of
    showing. Therefore, Theodore failed to show a probability of
    success regarding the fifth and eleventh causes of action for
    violation of Penal Code sections 484 and 496.
    56
    judicial proceedings by encouraging attorneys to zealously protect
    their clients’ interests.” (Id. at p. 214.) “Finally, in immunizing
    participants from liability for torts arising from communications
    made during judicial proceedings, the law places upon litigants
    the burden of exposing during trial the bias of witnesses and the
    falsity of evidence, thereby enhancing the finality of judgments
    and avoiding an unending roundelay of litigation, an evil far
    worse than an occasional unfair result.” (Ibid.; accord, Flatley, at
    p. 322.) “To further these purposes, the privilege has been
    broadly applied.” (Jacob B. v. County of Shasta (2007) 
    40 Cal.4th 948
    , 955.)
    “The usual formulation [of the litigation] privilege [is that]
    the privilege applies to any communication (1) made in judicial or
    quasi-judicial proceedings; (2) by litigants or other participants
    authorized by law; (3) to achieve the objects of the litigation; and
    (4) that have some connection or logical relation to the action.”
    (Silberg v. Anderson, supra, 50 Cal.3d at p. 212; 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 that act took place”].)
    “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 about whether the
    privilege applies is resolved in favor of applying it.” (Kashian,
    supra, 98 Cal.App.4th at p. 913; see 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
    57
    ‘some relation’ to a lawsuit, communications made both during
    and in anticipation of litigation are covered by the statute”].)
    Moreover, “‘communications made in connection with
    litigation do not necessarily fall outside the privilege merely
    because they are, or are alleged to be, fraudulent, perjurious,
    unethical, or even illegal’ assuming they are logically related to
    litigation.” (Blanchard v. DIRECTV, Inc. (2004) 
    123 Cal.App.4th 903
    , 921; accord, Kashian, supra, 98 Cal.App.4th at p. 920; see
    Jacob B. v. County of Shasta, 
    supra,
     40 Cal.4th at p. 956 [“the
    privilege extends even to civil actions based on perjury”]; Flatley,
    
    supra,
     39 Cal.4th at p. 322 [“[t]he litigation privilege has been
    applied in ‘numerous cases’ involving ‘fraudulent communication
    or perjured testimony’”]; Finton Construction, Inc., v. Bidna &
    Keys, APLC, supra, 238 Cal.App.4th at pp. 212-213 [the litigation
    privilege applied to defendant law firm’s actions in receiving and
    retaining an alleged stolen hard drive during a lawsuit until it
    was turned over pursuant to the court’s order in the underlying
    case]; Contreras v. Dowling, supra, 5 Cal.App.5th at p. 416 [the
    court rejected the tenant’s argument that the litigation privilege
    did not apply because tenant was suing landlord’s lawyer for
    conspiracy and aiding and abetting his clients’ illegal entries into
    the apartment]; Home Ins. Co. v. Zurich Ins. Co. (2002) 
    96 Cal.App.4th 17
    , 20, 22–26 [litigation privilege applied to
    attorney’s misrepresentation of available insurance policy limits
    to induce the settlement of a lawsuit].)
    As the California Supreme Court has recognized, where a
    privileged communication by an attorney rises to the level of
    criminal conduct, “other remedies aside from a derivative suit for
    compensation will exist,” including “criminal prosecution under
    Business and Professions Code, section 6128[,] and State Bar
    58
    disciplinary proceedings for violation of Business and Professions
    Code, section 6068, subdivision (d).” (Silberg v. Anderson, supra,
    50 Cal.3d at pp. 218-219, fn. omitted.)
    “‘A plaintiff cannot establish a probability of prevailing [in
    responding to a motion pursuant to section 425.16] if the
    litigation privilege precludes the defendant’s liability on the
    claim.’” (Bergstein, supra, 236 Cal.App.4th at p. 814; accord,
    Fremont Reorganizing Corp. v. Faigin, supra, 98 Cal.App.4th at
    p. 1172; see Flatley, 
    supra,
     39 Cal.4th at p. 323 [litigation
    privilege may present a substantive defense the plaintiff must
    overcome to demonstrate a probability of prevailing].)
    Theodore’s claims against defendants are based on their
    communicative conduct in a judicial proceeding to achieve the
    objects of the litigation. As in Bergstein, supra, 
    236 Cal.App.4th 793
    , Theodore fails to identify any of defendants’ conduct that
    was not a communication in a judicial proceeding. Theodore’s
    contention that “aiding and abetting,” “participating in
    conspiracy,” and “wrongfully taking money” are “non-
    communicative” conduct is unpersuasive. Aside from failing to
    provide record citations for the “non-communicative” conduct,
    Theodore’s complaint demonstrates otherwise because it
    extensively alleged communicative activity throughout. (Id. at
    p. 815 [“[s]imply claiming that ‘aiding and abetting [plaintiffs’
    former attorney’s] breach of fiduciary duty and facilitating [that
    attorney’s] breach of contract’ is ‘non-communicative conduct’
    does not make it so”].) As the trial court correctly pointed out,
    Theodore’s “allegations and evidence of communications” involved
    “inseparable communications in furtherance of litigation.” Even
    if defendants communicated improperly, the litigation privilege
    applies to bar Theodore’s claims. (Kashian, supra, 98
    59
    Cal.App.4th at p. 920 [“[c]ommunications made in connection
    with litigation do not necessarily fall outside the privilege simply
    because they are, or are alleged to be, fraudulent, perjurious,
    unethical, or even illegal”].)27
    Theodore’s reliance on Action Apartment Assn., Inc. v. City
    of Santa Monica (2007) 
    41 Cal.4th 1232
    , Banuelos v. LA
    Investment, LLC (2013) 
    219 Cal.App.4th 323
    , and Kimmel v.
    Goland (1990) 
    51 Cal.3d 202
     is misplaced. In Action Apartment
    Assn., Inc., the California Supreme Court observed that the
    27     Wax-Semus’s status as an Evidence Code section 730
    expert witness and a section 639 referee also precludes
    Theodore’s claims against her because she has quasi-judicial
    immunity. (Howard v. Drapkin, supra, 222 Cal.App.3d at
    pp. 858-859 [“the justification for giving judicial and quasi-
    judicial immunity to judges, commissioners, referees, court-
    appointed persons (such as psychologists, guardians ad litem and
    receivers), and nonappointed persons (such as those who prepare
    probation reports and handle child abuse cases) applies with
    equal force to these neutral persons who attempt to resolve
    disputes.”]; see Laborde v. Aronson (2001) 
    92 Cal.App.4th 459
    ,
    463-464 disapproved on another ground in Musaelian v. Adams
    (2009) 
    45 Cal.4th 512
     [litigation privilege bars father’s claims
    against Evidence Code section 730 evaluator in prior custody
    proceeding]; Gootee v. Lightner (1990) 
    224 Cal.App.3d 587
    , 591
    [father’s claims against psychologist jointly retained to provide
    custody recommendations barred by litigation privilege]; see also
    Soliz v. Williams (1999) 
    74 Cal.App.4th 577
    , 589, 591 [judicial
    immunity “depends on whether [the judicial officer] engaged in
    the exercise of a judicial function, even if he [or she] acted in
    excess of his [or her] jurisdiction” because immunity exists for
    “‘judicial actions; those relating to a function normally performed
    by a judge and where the parties understood they were dealing
    with the judge in his [or her] official capacity’”].)
    60
    litigation privilege did not apply to the “prosecutions” of certain
    crimes. (Id. at p. 1246.) In Banuelos, the court held that a cause
    of action for retaliatory eviction under Civil Code section 1942.5
    is not barred by the litigation privilege because the “Legislature
    presumably would not have included these protections in section
    1942.5 if it intended that they be nullified by the litigation
    privilege.” (Id. at pp. 325, 336.) In Kimmel, the California
    Supreme Court held, although the litigation privilege “precludes
    recovery for tortiously inflicted injury resulting from publications
    or broadcasts made during the course of judicial and quasi-
    judicial proceedings,” the “noncommunicative acts—the illegal
    recording of confidential telephone conversations—for the
    purpose of gathering evidence to be used in future litigation” was
    not privileged. (Id. at p. 205.) The Court pointed out that the
    recorded-party sought “statutory damages under Penal Code
    section 637.2 not for injuries arising from the broadcast and
    publication of private conversations, but from the recording of
    them.” (Id. at p. 212.) None of these cases assists Theodore.
    There was no criminal prosecution, retaliatory eviction claim, or
    alleged unlawful recording.
    61
    DISPOSITION
    The judgments are affirmed. Mink and the Madisons shall
    recover their costs on appeal.
    DILLON, J.
    We concur:
    PERLUSS, P. J.
    SEGAL, J.
    
    Judge of the Los Angeles Superior Court, assigned by the
    Chief Justice pursuant to article VI, section 6 of the California
    Constitution.
    62