Mende v. Balter CA2/7 ( 2021 )

Filed 7/16/21 Mende v. Balter CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ROGER MENDE, B303860
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC715117)
v.
JONI BALTER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Brenda J. Penny, Judge. Reversed and
remanded with directions.
Schindler Eyrich, John F. Eyrich for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
_______________________
INTRODUCTION
Joni Balter appeals the order denying her special motion to
strike (Code of Civ. Proc.,1 § 425.16) a first amended complaint
filed by Roger Mende. Balter argues the trial court erred in
denying her motion because Mende’s first amended complaint
arises from activity protected by section 425.16, namely a probate
lawsuit Balter filed to settle her deceased sister’s estate and
Balter’s statements and conduct as special administrator of the
estate. Balter also argues the litigation privilege bars Mende’s
causes of action and Mende therefore cannot show a probability
of prevailing on his claims. We reverse.
FACTUAL AND PROCEDURAL HISTORY
Balter’s sister Margie Balter died of cancer in October
2017.2 Mende alleges Margie was his “life partner of almost
twenty-five years.” Since Margie’s death, Balter and Mende have
been adverse in at least three lawsuits: a probate action, an
unlawful detainer action, and this civil action.
A. The Probate Case
Balter filed a probate petition in Los Angeles Superior
Court on January 19, 2018. The petition sought to admit
Margie’s June 7, 2016 will to probate and Balter’s appointment
as special administrator of Margie’s estate. Balter alleged
Margie’s June 7, 2016 will left Margie’s Los Angeles
condominium to Balter and Mende. On April 3, 2018 the court
1 Unless otherwise designated all statutory references are to
the Code of Civil Procedure.
2 For clarity, we refer to Margie Balter by her first name and
Joni Balter by her last name.
2
appointed Balter special administrator of the estate with
authority “to marshal [Margie’s] bank accounts, to pay any estate
obligations, and to deal with tax issues, if any.”
Mende filed a competing probate petition in pro per on
April 16, 2018 seeking to admit a will dated October 8, 2017 to
probate. Mende contended the October 8, 2017 will left Margie’s
condominium to Mende alone.
On July 31, 2018 the court expanded Balter’s authority as
special administrator to include the “additional powers” to “take
title to and maintain possession of” Margie’s condominium, and
to “handle the month to month tenancy of the Estate’s
condominium . . . with Roger Mende.” The order further
provided: “Roger Mende is to pay the fair rental value in a timely
manner in a month to month tenancy if he is to reside in the
condominium of the decedent. If Roger Mende fails to pay as
agreed upon with the Special Administrator, then the Special
Administrator may take any necessary actions to protect the
estate.”
B. The Civil Case
After Balter and Mende filed their competing probate
petitions, Mende filed this civil action in pro per against Balter
on July 25, 2018. Mende filed the operative first amended
complaint on October 18, 2018. In his prefatory allegations in the
first amended complaint, Mende alleges that before Margie’s
death Balter harassed and intimidated Margie about her career
choices and business projects, her cancer treatments, and her
3
diet. Mende also alleges Balter did not help Margie care for
Balter’s and Margie’s elderly parents.3
Mende alleges causes of action against Balter for
negligence, misrepresentation, fraud, conspiracy, harassment,
intentional infliction of emotional distress, “defamation of
character and slander,” interference with contract, interference
with prospective economic advantage, breach of the covenant of
quiet enjoyment, and quiet title. Mende alleges Balter was
negligent in her conduct as special administrator of Margie’s
estate, including by carelessly closing Margie’s bank accounts
and collecting paperwork from Margie’s condominium; failing to
make a claim on the estate’s behalf against a deceased friend’s
estate; failing to transfer the condominium’s grant deed to
Mende; improperly filing the June 7, 2016 will in the probate
case; failing to locate the alleged October 8, 2017 will; and
generally handling her special administrator duties poorly.
In his misrepresentation, fraud, and conspiracy causes of
action, Mende alleges Balter misrepresented to Mende her
special administrator status, duties, and authority, and falsely
told Mende she had unsuccessfully searched Margie’s
condominium for the alleged October 8, 2017 will. Mende alleges
Balter harassed and inflicted emotional distress on him by
“failing to properly and exhaustively search for Margie’s final will
and thereafter submitting an old will to the court,” telling him
the condominium would be sold, exaggerating the scope of her
special administrator authority, “misrepresenting or hiding to
[sic] the court the status of certain accounts,” “handl[ing] the
3 Mende named a second defendant (Abby Rich) in the first
amended complaint. Mende dismissed the first amended
complaint against Rich on May 2, 2019.
4
estate in such a way as to create chaos and difficulties,” and
using her special administrator position to treat Mende badly.
Mende alleges Balter defamed him by telling Mende’s
unidentified “friends and associates” that Mende “was an insane
squatter and impossible to deal with,” and “could never afford to
stay in the [c]ondo, or ever make sufficient money to do so.”
Mende also alleges Balter made rude comments about his
business acumen.
Mende alleges Balter interfered with alleged contracts
between Margie and Mende to produce films and to permit
Mende to remain in the condominium by telling Mende he could
not use the condominium for film production, telling Mende he
must move out of the condominium, “giving [Mende] thirty day[s’]
notice to vacate” the condominium, and taking other actions
related to selling the condominium. Mende alleges these same
statements and conduct also constituted interference with
prospective economic advantage and interfered with Mende’s
quiet enjoyment of the condominium.
Mende alleges a quiet title cause of action based on his
contentions the June 7, 2016 will is invalid; Margie left him the
condominium in the alleged October 8, 2017 will; Balter
“mistakenly or fraudulently filed th[e] old will with the probate
court”; Balter did not “properly list[ ] [Mende’s] joint-tenancy as
part of the probate proceeding”; and Balter “beg[a]n making
moves” indicating she intended to file an unlawful detainer action
against Mende, and said “in open court (probate) that it is her
intention to file unlaw[ful] detainer against” Mende. Mende
alleges he “properly filed Margie’s final will with the probate
court,” and because Margie and Mende allegedly held the
condominium “as joint tenants[,] the property should have passed
5
to [Mende] upon Margie’s death and is not subject to the
authority of [the] [p]robate [court].”
Mende seeks $2.25 million in damages on his negligence
cause of action, $1.5 million on his conspiracy cause of action, and
$1.25 million on each of his causes of action for
misrepresentation, fraud, harassment, intentional infliction of
emotional distress, defamation, interference with contract,
interference with prospective economic advantage, and breach of
the covenant of quiet enjoyment. Mende also seeks a judgment
that he owns the condominium “in fee simple.”
C. The Unlawful Detainer Case
On October 29, 2018, shortly after Mende filed his first
amended complaint in the civil action, Balter, in her capacity as
special administrator of Margie’s estate, filed an unlawful
detainer action against Mende seeking to evict him from the
condominium. The unlawful detainer complaint alleged Mende
had been served with a 30-day notice to quit on September 19,
2018, and that Balter had not charged Mende rent for more than
three months. On January 18, 2019 the trial court overruled
Mende’s demurrer to the unlawful detainer complaint.4
D. Balter Files a Demurrer and a Special Motion To Strike in
the Civil Case
On December 4, 2018 Balter filed a demurrer to Mende’s
first amended complaint, followed on December 24, 2018 by a
special motion to strike the first amended complaint pursuant to
4 Mende appealed the trial court’s order overruling his
demurrer to Balter’s unlawful detainer complaint. On June 18,
2020 this court dismissed Mende’s appeal for failure to file an
opening brief.
6
section 425.16. Balter argued in her special motion to strike that
each of Mende’s causes of action arose from acts in furtherance of
Balter’s rights of petition and free speech within the meaning of
section 425.16, specifically Balter’s statements and conduct in
connection with the probate case. Balter further argued the
litigation privilege in Civil Code section 47, subdivision (b),
barred Mende’s causes of action, and Mende therefore could not
establish a probability of prevailing on his claims. Balter sought
judicial notice of several documents and orders filed in the
probate case.
Mende argued in opposition that Balter had not provided
him proper notice of the special motion to strike. Mende
acknowledged that “some of [Balter’s] speech, actions and conduct
. . . may be protected under free speech and petition before a
judicial body,” but “the majority of [Balter’s] conduct, actions and
statements are so outrageous that they fall outside the
protections of free speech and petition before the court.” Mende
argued his allegations showed a probability he would prevail on
the merits of his claims. Mende sought judicial notice of various
documents and declarations filed in the probate case together
with their attached exhibits, which included correspondence,
medical records, and a photograph of a human foot.
Mende filed a supplemental opposition to the special
motion to strike on February 4, 2019. Mende argued the motion
was untimely, and Balter’s statements and conduct did not
constitute protected activity. Balter filed her reply in support of
the special motion to strike on February 5, 2019.
7
E. The Superior Court Deems the Civil Case and the Unlawful
Detainer Case Related to the Probate Case
On February 5, 2019, the same day Balter filed her reply in
support of the special motion to strike, the superior court5 issued
an order deeming the civil case and the unlawful detainer case
related to the probate case pursuant to California Rules of Court,
rule 3.300. The court ordered the civil case and the unlawful
detainer case reassigned to the judge presiding over the probate
case,6 and vacated all existing hearing dates in the civil and
unlawful detainer cases, including the hearing on Balter’s special
motion to strike.
F. The First Hearing on the Special Motion To Strike
On April 2, 2019, Mende filed a second supplemental
opposition to Balter’s special motion to strike. Mende again
argued Balter had not provided proper notice of the motion, and
further argued Balter had attempted to exploit Mende’s medical
conditions to gain a litigation advantage.
The court held a hearing on the demurrer and the special
motion to strike on July 25, 2019. The court issued an oral
tentative ruling denying the special motion to strike on the
ground that Balter “failed to satisfy her burden in showing that
the [first amended] complaint and its causes of action arise from
protected activity.” After hearing argument, the court continued
the hearing on the demurrer and the special motion to strike to
October 22, 2019.
5 Judge Samantha Jessner.
6 Judge Brenda J. Penny.
8
On September 10, 2019 the court on its own motion ordered
supplemental briefing on the special motion to strike. The court
ordered Balter to submit a supplemental brief “identifying with
citations to the complaint the protected conduct,” and ordered
Mende to respond to Balter’s supplemental brief. Balter’s
September 25, 2019 supplemental brief identified numerous
paragraphs of the first amended complaint that Balter contended
constituted protected activity.7
On October 17, 2019 Mende responded to Balter’s
supplemental brief. Mende argued the first amended complaint
did not arise from protected activity because Balter’s statements
and conduct predated Balter’s appointment as special
administrator, Balter’s statements and conduct were “so
outrageous” they could not be protected activity, and Mende had
sufficiently pleaded his causes of action which showed a
probability of prevailing on them.
G. The Ruling in the Probate Case
A court trial in the probate case occurred over three days
between May and July 2019. On October 22, 2019 the court
issued a statement of decision granting Balter’s petition to admit
Margie’s June 7, 2016 will to probate, and denying with prejudice
Mende’s petition to admit the October 8, 2017 will to probate.8
7 Balter also stated in her supplemental brief that at some
unspecified earlier time Mende had vacated the condominium.
8 On October 10, 2019 the trial court issued its proposed
statement of decision in the probate case, a copy of which is in the
appellate record. Pursuant to Evidence Code section 452,
subdivision (d), and section 459, subdivision (a), we take judicial
notice of the trial court’s October 22, 2019 final statement of
decision.
9
The court found “no credible evidence to support a finding
that the [October 8, 2017] will is admissible to probate.” The
court concluded Margie had not signed the alleged October 8,
2017 will, Margie’s signature on the October 8, 2017 will had
been “created ‘by pigment from a printer,’” and the October 8,
2017 will was unwitnessed. The court found Balter’s testimony
about her receipt of the June 7, 2016 will “truthful and credible,”
and Mende’s testimony that Margie “wanted him to have the
condo” not credible. The court found Mende’s trial testimony
“inconsistent, self-serving, evasive, contradictory and not
believable.”9
H. The Second Hearing on the Special Motion To Strike and
the Trial Court’s Ruling
At the October 22, 2019 hearing on the demurrer and the
special motion to strike, the trial court issued an oral tentative
ruling granting in part Balter’s special motion to strike:
“[Balter] largely fails to satisfy her burden in
showing the [first amended] complaint and causes of
action arise from protected activity. At most, the
subject causes of action appear to be mixed in the
causes of action containing allegations of both
protected and unprotected activity. [Balter’s] actions
as special administrator do not automatically fall
under the category of protected activity.
“Moreover, much of the alleged conduct
occurred before [Balter] even petitioned the court.
9 Mende appealed the trial court’s order admitting Margie’s
June 7, 2016 will to probate. On September 9, 2020 this court
dismissed Mende’s appeal for failure to file an opening brief.
10
The liability of this conduct is also largely based on
actions taken, not communications, and [Balter] has
not shown sufficient anticipation of litigation.
“However, in her supplement, [Balter] does
identify certain activity that would qualify as
protected activity. Specifically, [Balter’s] actions in
court such as filing petitions for probate would be
protected activity. [Mende] has failed to show
minimal merit regarding the portions of causes of
action based on liability for such action in light of the
litigation privilege.
“Accordingly, the court strikes the subject
complaint causes of action insofar as they are based
upon liability for communications or actions taken in
court in these proceedings. Specifically, the court
strikes these portions identified in [Balter’s]
supplement[:] [¶] Paragraph 85 [in] its entirety.
Paragraph 135, page 30, lines 3 through 6.
Paragraph 163 in its entirety. Paragraph 172, page
37, lines 2 to 5. Paragraph 220, page 48, lines 23 and
24. And paragraph 236 in its entirety. [¶] The
motion is otherwise denied.”
After hearing argument, the court took the demurrer and the
special motion to strike under submission.
On November 21, 2019 the trial court issued its order
denying Balter’s special motion strike, finding that Balter “failed
to carry her burden to make [a] prima facie showing that
[Mende’s] claims arise from protected activity.”10 The trial court
10 The trial court did not rule on either Balter’s or Mende’s
request for judicial notice.
11
sustained with leave to amend Balter’s demurrer to Mende’s
causes of action for negligence, conspiracy, interference with
prospective economic advantage, and breach of the covenant of
quiet enjoyment. The court overruled the demurrer to the other
causes of action.
Balter timely appealed the order denying her special
motion to strike.
DISCUSSION
A. Applicable Law and Standard of Review
Section 425.16, subdivision (b)(1), provides, “A cause of
action against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under
the United States Constitution or the California Constitution in
connection with a public issue shall be subject to a special motion
to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will
prevail on the claim.”
In ruling on a motion under section 425.16, the trial court
engages in a two-step process. “First, the defendant must
establish that the challenged claim arises from activity protected
by section 425.16. [Citation.] If the defendant makes the
required showing, the burden shifts to the plaintiff to
demonstrate the merit of the claim by establishing a probability
of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral);
accord, Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1061 (Park).) “Only a cause of action that
satisfies both prongs of the anti-SLAPP statute—i.e., that arises
from protected speech or petitioning and lacks even minimal
12
merit—is a SLAPP, subject to being stricken under the statute.”11
(Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier), italics
omitted.)
We review de novo an order granting or denying a special
motion to strike under section 425.16 (Wilson v. Cable News
Network (2019) 7 Cal.5th 871, 884 (Wilson); Sweetwater Union
High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931,
940 (Sweetwater); Park, supra, 2 Cal.5th at p. 1067), considering
the parties’ pleadings and affidavits describing the facts on which
liability or defenses are predicated. (§ 425.16, subd. (b)(2); see
Navellier, supra, 29 Cal.4th at p. 89.)
B. The Trial Court Erred in Denying Balter’s Special Motion
To Strike
1. Mende’s causes of action arise from protected activity
Pursuant to section 425.16, subdivision (e), an “‘act in
furtherance of a person’s right of petition or free speech under the
United States or California Constitution in connection with a
public issue’ includes: (1) any written or oral statement or writing
made before a legislative, executive, or judicial proceeding, or any
other official proceeding authorized by law, [and] (2) any written
or oral statement or writing made in connection with an issue
under consideration or review by a legislative, executive, or
judicial body, or any other official proceeding authorized by law.”
Filing a lawsuit is an act in furtherance of the
constitutional right of petition, regardless of whether it has
merit. (Trapp v. Naiman (2013) 218 Cal.App.4th 113, 120; see
also Newport Harbor Offices & Marina LLC v. Morris Cerullo
11 SLAPP is an acronym for “strategic lawsuit against public
participation.” (Park, supra, 2 Cal.5th at p. 1060.)
13
World Evangelism (2018) 23 Cal.App.5th 28, 45 [“An unlawful
detainer action and service of notices legally required to file an
unlawful detainer action are protected activity within the
meaning of section 425.16.”].) Balter’s filing of the probate and
unlawful detainer cases, and her service on Mende of a 30-day
notice to quit as a necessary precursor to the unlawful detainer
case, are activities protected by section 425.16.
Balter’s statements and conduct in connection with the
probate case are also protected activities. Section 425.16 is
“‘construed broadly’” (Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal.4th 1106, 1119 (Briggs)), and courts
have adopted “a fairly expansive view of what constitutes
litigation-related activities within the scope of section 425.16.”
(Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908 (Kashian);
see § 425.16, subd. (a).) “[A] statement is ‘in connection with’
litigation under section 425.16, subdivision (e)(2), if it relates to
the substantive issues in the litigation and is directed to persons
having some interest in the litigation.” (Neville v. Chudacoff
(2008) 160 Cal.App.4th 1255, 1266; accord, Briggs, at pp. 1114-
1115; Bergstein v. Strook & Strook & Lavan LLP (2015) 236
Cal.App.4th 793, 803-804 (Bergstein); Kolar v. Donahue,
McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537
(Kolar) [“protection for petitioning activities applies not only to
the filing of lawsuits, but extends to conduct that relates to such
litigation, including statements made in connection with or in
preparation of litigation”].)
Balter’s alleged statements and conduct after Margie’s
death related to Margie’s will and estate and to Balter’s position
as special administrator of the estate. The alleged statements
and conduct concerned subjects at issue in the probate case,
14
including the competing wills filed by Balter and Mende, the
ownership and disposal of Margie’s condominium, and Balter’s
management of Margie’s bank accounts, documents, and business
affairs in her capacity as the estate’s court-appointed special
administrator. Further, Mende alleges Balter directed her
statements and conduct at Mende, who plainly had an interest in
the probate case, the outcome of which would determine whether
Mende owned Margie’s condominium alone or jointly with Balter.
Balter’s alleged statements and conduct regarding the probate
case are protected activities under section 425.16.12
Mende’s causes of action arise from Balter’s protected
activity. “A claim arises from protected activity when that
activity underlies or forms the basis for the claim.” (Park, supra,
2 Cal.5th at pp. 1062-1063.) Thus, “[t]he defendant’s first-step
burden is to identify the activity each challenged claim rests on
12 Balter filed the probate case three months after Margie’s
death, and the court shortly thereafter appointed Balter special
administrator. Mende argued in the trial court that Balter’s
alleged statements and conduct could not constitute protected
activities because they predated her appointment as special
administrator. Mende does not identify specific dates on which
Balter’s alleged statements and conduct occurred. It is clear from
the allegations, however, that the statements and conduct on
which Mende bases his causes of action occurred after Margie
died. “‘[C]ommunications preparatory to or in anticipation of the
bringing of an action or other official proceeding’” are protected
by section 425.16. (Briggs, supra, 19 Cal.4th at p. 1115; see also
Kolar, supra, 145 Cal.App.4th at p. 1537.) Even if some of
Balter’s alleged statements and conduct occurred in the three
months between Margie’s death and Balter’s filing of the probate
case, they were clearly in anticipation of the contemplated
probate lawsuit.
15
and demonstrate that that activity is protected by the anti-
SLAPP statute. A ‘claim may be struck only if the speech or
petitioning activity itself is the wrong complained of, and not just
evidence of liability or a step leading to some different act for
which liability is asserted.’” (Wilson, supra, 7 Cal.5th at p. 884;
accord, Park, at p. 1060.)
Balter’s probate petition and her statements and conduct
as the special administrator of Margie’s estate underlie each of
Mende’s causes of action. Mende’s negligence, misrepresentation,
fraud, conspiracy, harassment, intentional infliction of emotional
distress, and quiet title causes of action premise Balter’s alleged
liability on her filing of the June 7, 2016 will in the probate
case—the will that left Margie’s condominium to Mende and
Balter together rather than to Mende alone. Mende also alleges
Balter acted negligently as the estate’s special administrator,
including in her handling of the estate’s bank accounts and
paperwork—duties specifically authorized by the court’s April 3,
2018 order appointing Balter as special administrator. Mende’s
negligence, harassment, intentional infliction of emotional
distress, defamation, interference with contract, interference
with prospective economic advantage, breach of the covenant of
quiet enjoyment, and quiet title causes of action each allege
Balter is liable based on her statements and conduct related to
her management of the condominium in her role as the estate’s
special administrator. Mende’s interference with contract,
interference with prospective economic advantage, breach of the
covenant of quiet enjoyment, and quiet title causes of action also
allege as additional grounds for liability Balter’s statements and
conduct related to the unlawful detainer case Balter filed to evict
Mende from the condominium, including Balter’s service on
16
Mende of a 30-day notice to quit and her statements in the
probate case that she intended to file an unlawful detainer action
against Mende.
In sum, Mende sought in the civil case to impose liability
on Balter for filing the probate case, for Balter’s efforts in the
probate case to admit the June 7, 2016 will to probate, and for
Balter’s management of Margie’s estate as the court-appointed
special administrator. The trial court erred in concluding Balter
had not demonstrated Mende’s causes of action arose from
protected activity.
2. The litigation privilege bars Mende’s causes of action
Because the trial court concluded Balter failed to satisfy
the first step of the section 425.16 analysis, the court did not
reach the question of whether Mende showed a probability he
would prevail on his claims. We may nevertheless address that
question as it is subject to independent review. (Roberts v. Los
Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 615-616.)
If the defendant makes a prima facie showing that the
plaintiff’s claims arise from constitutionally protected petitioning
or free speech activity, the burden shifts to the plaintiff to
establish, with admissible evidence, a probability of prevailing on
the causes of action challenged by the anti-SLAPP motion.
(§ 425.16, subd. (b); Sweetwater, supra, 6 Cal.5th at p. 940; Baral,
supra, 1 Cal.5th at p. 384.) At the second step, the burden is on
the plaintiff to show that he has “stated and substantiated a
legally sufficient claim.” (Briggs, supra, 19 Cal.4th at p. 1123.)
“The court does not weigh the evidence or resolve conflicting
factual claims. Its inquiry is limited to whether the plaintiff has
stated a legally sufficient claim and made a prima facie factual
showing sufficient to sustain a favorable judgment.” (Baral, at
17
pp. 384-385.) The second step of the section 425.16 analysis
requires a plaintiff to establish separately a probability of
prevailing on each distinct claim for relief: “[T]he plaintiff must
make the requisite showing as to each challenged claim that is
based on allegations of protected activity.” (Id. at p. 392.)
The litigation privilege in Civil Code section 47 applies to
“any communication (1) made in judicial or quasi-judicial
proceedings; (2) by litigants or other participants authorized by
law; (3) to achieve the objects of the litigation; and (4) that have
some connection or logical relation to the action.” (Silberg v.
Anderson (1990) 50 Cal.3d 205, 212 (Silberg).) Prelitigation
statements are protected under Civil Code section 47 when they
are made in connection with a proposed litigation that is
“contemplated in good faith and under serious consideration.”
(Action Apartment Assn. v. City of Santa Monica (2007)
41 Cal.4th 1232, 1251 (Action Apartment); see Briggs, supra,19 Cal.4th at p. 1115 [“‘communications preparatory to or in
anticipation of the bringing of an action or other official
proceeding are within the protection of the litigation privilege of
Civil Code section 47, subdivision (b)’”]; Kenne v. Stennis (2014)
230 Cal.App.4th 953, 965 [“[b]ecause Civil Code section 47,
subdivision (b)[,] protects any statements or writings that have
‘some relation’ to a lawsuit, communications made both during
and in anticipation of litigation are covered by the statute”].)
“A threshold issue in determining if the litigation privilege
applies is whether the alleged injury arises from a
communicative act or noncommunicative conduct.” (Action
Apartment, supra, 41 Cal.4th at p. 1248.) “The distinction
between communicative and noncommunicative conduct hinges
on the gravamen of the action. [Citations.] That is, the key in
18
determining whether the privilege applies is whether the injury
allegedly resulted from an act that was communicative in its
essential nature.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1058.) “[I]f the gravamen of the action is communicative, the
litigation privilege extends to noncommunicative acts that are
necessarily related to the communicative conduct.” (Id. at
p. 1065.) “[T]he filing of a legal action . . . by its very nature is a
communicative act.” (Action Apartment, at p. 1249; see ibid. [“We
contemplate no communication that is more clearly protected by
the litigation privilege than the filing of a legal action.”].)
“The principal purpose of [Civil Code] section
47[, subdivision (b),] is to afford litigants . . . the utmost freedom
of access to the courts without fear of being harassed
subsequently by derivative tort actions.” (Silberg, supra,
50 Cal.3d at p. 213; accord, Healy v. Tuscany Hills Landscape &
Recreation Corp. (2006) 137 Cal.App.4th 1, 5.) “The litigation
privilege is absolute; it applies, if at all, regardless whether the
communication was made with malice or the intent to harm.
[Citation.] . . . [¶] If there is no dispute as to the operative facts,
the applicability of the litigation privilege is a question of law.
[Citation.] Any doubt whether the privilege applies is resolved in
favor of applying it.” (Kashian, supra, 98 Cal.App.4th at p. 913.)
Mende’s causes of action against Balter are based on
Balter’s filing of the probate and unlawful detainer lawsuits, her
alleged statements and conduct in those lawsuits, and her alleged
statements and conduct in anticipation of filing those lawsuits.
Statements and conduct regarding Margie’s will and Balter’s
management of Margie’s estate as the estate’s special
administrator logically relate to the object of the lawsuits—
settling Margie’s estate, including disposing of Margie’s
19
condominium. The litigation privilege thus provides a
substantive defense to Mende’s causes of action and bars the
claims. (See Adams v. Superior Court (1992) 2 Cal.App.4th 521,
529 [litigation privilege bars cause of action “provided that there
is some reasonable connection between the act claimed to be
privileged and the legitimate objects of the lawsuit in which the
act took place”].) Mende cannot meet his burden under the
second step of the section 425.16 analysis of demonstrating a
probability of prevailing on his claims. (Flatley v. Mauro (2006)
39 Cal.4th 299, 323 [litigation privilege “may present a
substantive defense a plaintiff must overcome to demonstrate a
probability of prevailing”]; Bergstein, supra, 236 Cal.App.4th at
p. 814 [“‘A plaintiff cannot establish a probability of prevailing [in
responding to a special motion to strike] if the litigation privilege
precludes the defendant’s liability on the claim.’”].)13
13 Because we conclude Mende’s causes of action are barred
by Civil Code section 47, we need not consider whether Mende
demonstrated a probability of prevailing on his causes of action
based on an analysis of the elements of the claims.
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DISPOSITION
The order denying Balter’s special motion to strike is
reversed. The case is remanded to the trial court with directions
to vacate the order denying Balter’s special motion to strike, to
enter a new order granting the special motion to strike, and to
conduct proceedings as appropriate to determine costs and
reasonable attorneys’ fees, including attorneys’ fees on appeal, to
be awarded to Balter. (§ 425.16, subd. (c)(1).) Balter shall also
recover her costs on appeal.
McCORMICK, J.
We concur:
SEGAL, Acting P. J.
FEUER, J.

Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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