Filed 5/1/15; pub. order 5/8/15 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                              DIVISION EIGHT

DAVID BERGSTEIN et al.,                                 B244896

         Plaintiffs and Appellants,                     (Los Angeles County
                                                        Super. Ct. No. BC483164)
         v.

STROOCK & STROOCK & LAVAN LLP
et al.,

         Defendants and Respondents.



         APPEAL from orders of the Superior Court for the County of Los Angeles.
Michael Linfield, Judge. Affirmed.
         Horvitz & Levy, Frederic D. Cohen, Felix Shafir, Jeremy B. Rosen; Weingarten
Brown, Alex M. Weingarten and Eric J. Bakewell for Plaintiffs and Appellants.
         Munger, Tolles & Olson, Brad D. Brian, Michael R. Doyen, Lisa J. Demsky and
Manuel F. Cachan for Defendants and Respondents Stroock & Stroock & Lavan LLP and
Daniel Rozansky.
         Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup; Parker Shumaker Mills and
David B. Parker for Defendants and Respondents Levene, Neale, Bender, Yoo & Brill
L.L.P., David Neale, Irving Gross and Beth Young.


                             ____________________________________
                                        SUMMARY
       The plaintiffs in this case (David Bergstein and affiliated business entities) sued
the lawyers who represented their adversaries (David Molner and others) in litigation
over various financial transactions. Plaintiffs asserted that the lawyers engaged in illegal
conduct when they “solicited and received . . . confidential, privileged, and/or proprietary
information” from plaintiffs’ former attorney, and used that information “in devising the
legal strategy to be employed” in the litigation against plaintiffs.
       The defendant lawyers filed a special motion to strike the complaint under Code of
Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public
participation) statute. The trial court granted the motion and awarded attorney fees to
defendants. The court concluded the complaint arose from protected First Amendment
activity; there was insufficient evidence to show defendants’ conduct was illegal as a
matter of law; and plaintiffs did not show a probability of prevailing on their claims, both
because the statute of limitations had run and because the litigation privilege barred
plaintiffs’ claims.
       We affirm the trial court’s orders.
                                             FACTS
1.     The Background
       Plaintiffs are involved in acquiring, producing and distributing motion pictures, as
well as in commercial transactions in other business sectors. Their activities require the
involvement of entities or individuals willing to provide financing. David Molner and
entities he controlled (Aramid Entertainment Fund Limited and others (Aramid))
participated in a number of financial transactions relating to plaintiffs’ film production
and distribution business, making a series of loans to plaintiffs from 2007 to 2009.
       In 2009, the business relationship between plaintiffs and Aramid became “highly
adversarial.” Molner and Aramid hired defendants – Stroock and Stroock and Lavan
LLP and its partner, Daniel Rozansky, and Levene Neale Bender Yoo & Brill L.L.P. and
its partners, David Neale, Irving Gross, and Beth Young – to represent them in litigation
against plaintiffs. (Plaintiffs describe this as “Molner’s and Aramid’s war” and a “ ‘fight

                                               2
to the death’ litigation struggle [that] spawned numerous lawsuits” in California, New
York, and elsewhere.) The Levene Neale firm was “to craft and institute involuntary
bankruptcy proceedings against Plaintiffs and affiliated entities,” and the Stroock firm
was “to construct and implement a litigation strategy against Plaintiffs and affiliated
entities that involved filing a series of lawsuits at or about the same time as the
involuntary bankruptcy proceedings were initiated.”
       Attorney Susan Tregub was plaintiff Bergstein’s lawyer for over a decade, and she
represented the other plaintiff entities as well. She 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. She effectively served as plaintiffs’
general counsel, maintaining an office in the same suite with some of the plaintiff
companies, and was paid a monthly retainer.
       In late 2009, Ms. Tregub and plaintiff Bergstein had a falling out over fees, and
Ms. Tregub “threatened [Mr. Bergstein] that ‘she would bring [him] down.’ ”
       On March 16, 2010, Aramid, represented by the Stroock firm, sued plaintiff
Bergstein for breach of personal guarantees given to secure loans from Aramid, and at
about the same time, the Levene Neale firm, on behalf of creditors including Aramid,
filed involuntary bankruptcy petitions against affiliated entities of plaintiffs.
       Ms. Tregub, despite her previous (and to some extent continuing) representation of
plaintiffs, began working for Aramid and David Molner in November or December 2009.
She “coordinated and organized” the filing of the involuntary bankruptcy proceedings,
and she assisted Aramid in the litigation against plaintiffs “arising out of loan
transactions in which she had been directly involved even though Aramid’s interests were
clearly directly adverse” to plaintiffs’ interests.
       On March 25, 2010, Mr. Bergstein and other plaintiffs sued Ms. Tregub for breach
of fiduciary duty and professional negligence, ultimately (in August 2012) obtaining a
multimillion dollar verdict and punitive damages.



                                                3
2.      The Complaint
        On April 20, 2012, two years or so after filing suit against Ms. Tregub, plaintiffs
filed this lawsuit against defendants, alleging causes of action for aiding and abetting
Ms. Tregub’s breach of fiduciary duty; interference with contractual relations and
prospective economic advantage; and unjust enrichment. In addition to the facts we have
just recited and other colorful but irrelevant matters, the complaint alleged, by way of
introduction, that:
        “In the course of their representation [of Aramid],” defendants “knowingly used
the confidential, privileged, and/or proprietary information of Plaintiffs and affiliated
entities to carry out a litigation attack” on plaintiffs. Defendants “solicited and received
this confidential, privileged, and/or proprietary information from Susan Tregub,
Plaintiffs’ former attorney.” Ms. Tregub “admittedly concealed material evidence at
Defendants’ direction.”
        “During the period prior to the filing of legal proceedings against [plaintiffs],
Defendants received a steady flow of confidential, privileged, and/or proprietary
information [from] Tregub to assist them in their efforts. They exchanged drafts of
pleadings with her, emailed back and forth about various issues, and participated in
telephone conference calls and in person meetings while Tregub was present. . . .
Defendants knowingly received from Tregub confidential, privileged, and/or proprietary
information about Bergstein, his business dealings, and the various entities through which
he conducted business. Defendants knowingly used Tregub’s assistance in devising the
legal strategy to be employed against Bergstein . . . . They used Tregub to obtain
documents, identify witnesses, and solicit potential creditors. . . .”
        “Defendants’ actions have caused Plaintiffs to be involved in lengthy, protracted,
contentious, and expensive legal proceedings. . . . [T]he litigations, litigation fees and
costs, resources devoted to the litigations, and negative publicity accompanying the
litigations have resulted in nearly incalculable injury and damage to Plaintiffs’ business
interests. . . .”



                                               4
       The substantive allegations of the complaint appear in paragraphs 45 through 145
of the complaint. Part I allegations (¶¶ 45-53) describe the background giving rise to the
underlying litigation (described ante). Part II and Part III allegations (¶¶ 54-110)
describe, respectively, defendants’ preparation for “a litigation war” against plaintiffs
(¶¶ 54-71) and defendants’ improper use of plaintiffs’ confidential information, in
preparation for the litigation and after it was filed (¶¶ 72-110). Part IV allegations
describe plaintiffs’ lawsuit against Ms. Tregub for professional negligence and breach of
fiduciary duty and defendants’ resistance to discovery demands in that lawsuit (¶¶ 111-
120). Part V allegations allege defendants’ knowledge of Ms. Tregub’s representation of
plaintiffs (¶¶ 121-127), and Part VI allegations describe plaintiffs’ damages (¶¶ 128-145).
       We begin with a sampling of the substantive allegations of the complaint.
Plaintiffs allege:
       “Aramid and Defendants began working with Tregub to initiate legal proceedings
against Plaintiffs beginning in November or December 2009.” This involved two
projects, a “master complaint” against Mr. Bergstein and several affiliated entities and the
involuntary bankruptcy petitions. Both projects involved defendants’ “knowing
solicitation, receipt, and use” of plaintiffs’ confidential, privileged, and/or proprietary
information.
       “Prior to December 2009, Stroock and Rozansky began drafting the Master
Complaint.” Ms. Tregub revised the draft, and “[b]y working on and assisting with the
preparation of the Master Complaint, Tregub provided confidential . . . information about
Plaintiffs to Stroock and Rozansky,” who “took and used this confidential . . .
information without Plaintiff’s consent . . . .”
       “During the preparation of the Master Complaint, Stroock and Rozansky . . .
invited Tregub to attend strategy sessions,” at which they “strategized about ways to put
maximum pressure on Plaintiffs including by the litigation contemplated in the Master
Complaint and parallel bankruptcy proceedings.”
       Stroock and Rozansky used the master complaint containing plaintiffs’
confidential information “as the basis for the complaints they intended to file”; solicited

                                               5
advice and support from the Levene Neale defendants “regarding the planned litigation
for Aramid”; and “[u]ltimately, Stroock and Rozansky, on behalf of Aramid and working
in conjunction with Tregub, filed multiple lawsuits in federal and state court against
certain Plaintiffs.”
       “As Stroock and Rozansky knew, the factual information supporting the claims
that were asserted . . . were derived from the Master Complaint that Tregub . . . and
Defendants drafted . . . .”
       “In addition, Defendants participated in preparing papers in [another action]
seeking a temporary restraining order,” and “Rozansky sought and received from Tregub
information regarding the relationships between Bergstein [and others],” as well as
“documents . . . that Tregub obtained while she represented Plaintiffs.”
       Ms. Tregub also “worked hand-in-hand” with defendants Levene Neale and its
partners “to prepare petitions, motions, and other papers necessary to force the entities
affiliated with Bergstein into involuntary bankruptcy.” The complaint then describes the
consultations and communications between Ms. Tregub and the Levene Neale firm, and
alleges the firm’s solicitation and use of the information Ms. Tregub provided, including
preparation of a master strategy memorandum, identification of entities to be placed in
bankruptcy, and communications on that subject. In addition, the Levene Neale firm
“orchestrated the improper purchase of a claim against entities affiliated with Plaintiffs,”
for use in the involuntary bankruptcy proceedings, by working with Ms. Tregub and
using confidential information she provided; the complaint gives examples of
communications on this topic.
       A Levene Neale partner worked with and directed Ms. Tregub in contacting
former employees of plaintiff-affiliated entities to prepare declarations in support of an
emergency order appointing a trustee. Levene Neale filed the bankruptcy petitions and
motion; communicated with Ms. Tregub on strategy; and so on. The complaint describes
other efforts by the Stroock firm, involving involuntary bankruptcy proceedings in other
jurisdictions, to acquire claims against another company to which Mr. Bergstein had lent



                                             6
millions of dollars, and to “scour[] the globe to locate other potential creditors” of that
company.
       The complaint also alleges that after months of participating in communications
involving Ms. Tregub, defendants attempted to hide their conduct by forwarding emails
to and from Ms. Tregub through an intermediary, using a “pivot and pass” strategy, with
Ms. Tregub proving information to Aramid, and Aramid forwarding the information to
defendants.
       Defendants “continued to assist Tregub in breaching her duties even after [the
various lawsuits] were filed.”
       The complaint then describes the lawsuit plaintiffs filed against Ms. Tregub on
March 25, 2010, for professional negligence and breach of fiduciary duty (the Tregub
case); their requests for discovery from Ms. Tregub and subpoenas for documents from
defendants; and defendants’ “repeated refusals . . . to abide by their discovery obligations
in the Tregub Case . . . .” The complaint alleges that when defendants began working
with Ms. Tregub, they were aware Ms. Tregub represented plaintiffs in the past and
“continued to represent Plaintiffs and affiliated entities in ongoing litigation.”
       The complaint describes plaintiffs’ “nearly insurmountable damage and injury to
their business operations since the filing” of the bankruptcy proceedings and the loan
litigation, and alleges their “value and businesses are diminished by” and Bergstein lost
“the benefit of his Miramax deal because of” the ongoing litigation.
3.     The Anti-SLAPP Motion
       Defendants filed special motions to strike the complaint under the anti-SLAPP
statute. Their motions alleged plaintiffs’ claims were based on defendants’ conduct in
filing litigation; filing litigation is protected activity under the anti-SLAPP statute; and
plaintiffs could not prevail on their claims because the claims were barred both by the
statute of limitations and by the litigation privilege.
       Plaintiffs’ opposition contended their claims did not arise from protected activity.
They asserted that the complaint alleged defendants participated in the theft of
confidential and privileged documents and information, and in the unlawful purchase of

                                               7
claims for the purpose of forcing an involuntary bankruptcy, and that this was
nonlitigation conduct not protected under the anti-SLAPP statute, “separate and distinct
from [defendants’] ultimate filing of any litigation.” Plaintiffs asserted their claims “are
based on the ‘other conduct’ [rather than statements made in connection with litigation]
and their relation to litigation is ‘merely incidental.’ ” The gravamen of their complaint,
they contended, was “Tregub’s blatant disregard of her duty of loyalty to her clients and
theft of privileged and confidential information – and, of course, Defendant’s
participation in those unlawful acts.”
       Plaintiffs’ opposition included more than 2,000 pages of documents, including
dozens of email communications among Ms. Tregub, Mr. Molner and various defendants,
and asserted that defendants’ conduct was not protected by the anti-SLAPP statute
because the conduct was illegal as a matter of law. On this last point, the entirety of
plaintiffs’ argument was this: “Here, Defendants engaged in conduct that they knew was
illegal. They used Tregub’s inside information to buy bankruptcy claims despite
knowing that to do so was unlawful. See, e.g., 11 U.S.C. app. § 1003 [Federal Rules of
Bankruptcy Procedure, rule 1003] (improper to purchase claims to force involuntary
bankruptcy). They offer no defense to their active participation in illegal activities, and
the anti-SLAPP statute offers no protection for Defendants’ participation in illegal
activities.” In any event, plaintiffs contended, they showed a likelihood of prevailing on
the statute of limitations and litigation privilege defenses asserted by defendants.
       The trial court, in a thorough 39-page decision, granted the special motion to
strike, and later awarded defendants $150,222.64 in attorney fees. Plaintiffs appealed
from both orders.
                                         DISCUSSION
       A defendant may bring a special motion to strike any cause of action “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.” (Code Civ. Proc., § 425.16, subd. (b)(1).) When ruling on an anti-SLAPP
motion, the trial court employs a two-step process. It first looks to see whether the

                                              8
moving party has made a threshold showing that the challenged causes of action arise
from protected activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th
53, 67 (Equilon).) If the moving party meets this threshold requirement, the burden then
shifts to the other party to demonstrate a probability of prevailing on its claims. (Ibid.)
In making these determinations, the trial court considers “the pleadings, and supporting
and opposing affidavits stating the facts upon which the liability or defense is based.”
(§ 425.16, subd. (b)(2).) Our review is de novo. (Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260, 269, fn. 3 (Soukup).)
       In this case, plaintiffs first contend that, as a threshold matter, the anti-SLAPP
statute does not apply because defendants engaged in unlawful acts that are not protected
by the anti-SLAPP statute. They further contend that “[c]laims arising from aiding and
abetting breach of fiduciary duties” are not subject to the anti-SLAPP statute, “even if
they occur in the context of litigation.” They contend their claims are not barred by the
statute of limitations or the litigation privilege, and they should have been permitted to
amend their complaint to “rais[e] non-protected claims.”
       We find no merit in any of plaintiffs’ contentions, and address them in turn.
1.     The First Prong of the Statute: Protected Activity
       The moving party has the initial burden of making a prima facie showing that one
or more causes of action arise from protected activity. (Equilon, supra, 29 Cal.4th at
p. 67; see Code Civ. Proc., § 425.16, subd. (e).)
       Statements made in litigation, or in connection with litigation, are protected by
Code of Civil Procedure section 425.16, subdivision (e). (Briggs v. Eden Council for
Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.) Courts have taken a fairly
expansive view of what constitutes litigation-related activity for purposes of section
425.16. (See Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908.) In making a prima
facie showing, however, it is not enough to establish that the action was filed in response
to or in retaliation for a party’s exercise of the right to petition. (Navellier v. Sletten
(2002) 29 Cal.4th 82, 89; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76-77.)



                                                9
Rather, the claim must be based on the protected petitioning activity. (Navellier, at
p. 89.)
          When a cause of action involves both protected and unprotected activity, the court
looks to the gravamen of the claim to determine if the claim is a SLAPP. (Peregrine
Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658,
672-673 (Peregrine Funding).) Protected conduct which is merely incidental to the claim
does not fall within the ambit of Code of Civil Procedure section 425.16. (Martinez v.
Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188; Peregrine Funding, supra, at
p. 672.) Determining the gravamen of the claims requires examination of the specific
acts of alleged wrongdoing and not just the form of the claim. (Peregrine Funding,
supra, at p. 671.)
          a.     The illegality claim
          Plaintiffs first argue that the anti-SLAPP statute does not apply because
defendants’ conduct was illegal as a matter of law, relying on Flatley v. Mauro (2006)
39 Cal.4th 299 (Flatley).
          In Flatley, the court held that “a defendant whose assertedly protected speech or
petitioning activity was illegal as a matter of law, and therefore unprotected by
constitutional guarantees of free speech and petition, cannot use the anti-SLAPP statute
to strike the plaintiff’s complaint.” (Flatley, supra, 39 Cal.4th at p. 305.) The court
stated the rule this way: where “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.” (Id. at p. 320.) In Flatley, an attorney’s communications to
the plaintiff (a demand letter and subsequent telephone calls) “constituted criminal
extortion as a matter of law” and so were unprotected. (Id. at pp. 305, 332.) The
evidence of the defendant’s communications was uncontroverted. (Id. at p. 329.) The
court emphasized that its conclusion that the defendant’s communications constituted
criminal extortion as a matter of law was “based on the specific and extreme
circumstances of this case.” (Id. at p. 332, fn. 16.)

                                               10
       Plaintiffs contend that “conclusive evidence that a violation of any state statute has
occurred is sufficient to trigger application of the illegality exception and bar a defendant
from seeking the protection of the anti-SLAPP law.” Here, they say, their evidence
conclusively established that defendants aided and abetted Ms. Tregub’s violation of
Business and Professions Code section 6068, subdivision (e)(1).1 (Section 6068 provides


1       The “conclusive evidence” of illegality defendants cite on appeal consists of email
correspondence to and from Ms. Tregub. The cited emails are substantially as follows:
Ms. Tregub’s emails to defendant David Neale and others revealing that Bergstein
“planned on reneging” on a certain loan transaction; that Bergstein planned to dispose of
certain personal property in various warehouses (and that one Bergstein entity “has no
real creditors and is not insolvent”), and that the lawyers should not use a particular press
quotation of Bergstein’s because he could show he was misquoted, and she would “work
on digging [Bergstein’s emails] up this weekend”; a Levene Neale inquiry as to whether
Ms. Tregub ever found any checks evidencing payment of personal debts with company
funds; Ms. Tregub’s request to Sanjay Sharma (a defendant later dismissed from the
appeal in this case) to forward to the Levene Neale firm a document “outlining the
relationships and history of the company,” setting forth “some of the allegations
regarding how all these companies are intermingled,” and saying that one entity had
“profoundly disorganized or non-existent books and records” and a “nearly impossible
time raising capital”; emails between Ms. Tregub and defendant Rozansky in which
Ms. Tregub provided information about a lawsuit Warner Brothers had just filed,
apparently against Mr. Bergstein and one of his entities, and suggested Mr. Rozansky call
her if he wanted additional information, which Rozansky said he would do; in the same
email, Ms. Tregub says she is “off to court for an ex parte appearance to get out of a DB
case,” and “[i]f the judge doesn’t grant my motion, I may be making a collect call to you
[Rozansky]”; Ms. Tregub’s email to Levene Neale lawyers forwarding a copy of a
complaint in a case against Bergstein that Ms. Tregub had been handling for Bergstein
(and telling them “to be careful with bandying my name about – this is what set David
[Bergstein] off last time threatening me”); an email from Ms. Tregub to Levene Neale
lawyers forwarding a 2008 Bergstein email, and saying she was “going through this” with
a person who could “point to specific instances of either bogus allocations or
inappropriate accounting practices . . .”; an email to defendant Neale with “the
documentation that shows Capitol trying to book productions fees on some films that
were non-existent”; an email from Ms. Tregub to Levene Neale lawyers attaching
documents such as organizational and financial statements for Bergstein-affiliated
entities; email correspondence among Ms. Tregub and the Levene Neale firm and others
identifying creditors willing to file claims in the bankruptcy proceedings and providing
background information; email correspondence among Levene Neale lawyers,
Ms. Tregub and others about declarations from various persons; email correspondence

                                             11
that it is the duty of an attorney “[t]o maintain inviolate the confidence, and at every peril
to himself or herself to preserve the secrets, of his or her client.”)2
       We reject plaintiffs’ contention for two reasons. First, 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. And second, even if we accept the
contention that the illegality exception may in some circumstances apply to statutory
violations that are not criminal conduct, we could not apply the illegality exception in this
case. As we explain post, plaintiffs’ opposition papers in the trial court failed even to cite
the statutory violation on which they now rely – and that omission is fatal under the
Supreme Court authority plaintiffs cite to support their contention.
              i.      The post-Flatley cases
       In Mendoza v. ADP Screening and Selection Services, Inc. (2010) 182 Cal.App.4th
1644 (Mendoza), a panel of this court expressly rejected the plaintiff’s contention “that


showing Ms. Tregub provided comments on bankruptcy filings and asking the comments
be forwarded to Levene Neale; an email from Ms. Tregub to David Molner, asking him
to forward a copy of a lawsuit to Levene Neale, and Molner’s response saying he had
done so, but “[p]robably easier to use Sanjay to pivot and pass,” because “[i]t may
otherwise get stalled in my in-box”; Ms. Tregub’s deposition testimony that by the time
of the “pivot and pass” comment, “we had determined at this point that it was better for
me not to communicate directly with David Neale’s office”; an email message from
Ms. Tregub to Mr. Molner saying “I think for BK stuff you should CC me and then
forward to Dan”; emails showing Ms. Tregub worked on declarations for the bankruptcy
litigation in coordination with Levene Neale; emails and red-lined drafts showing
Ms. Tregub worked on the “master complaint” for the Aramid loan litigation (comments
on the drafts show, for example that “Susan will insert particulars of emails from David
[Bergstein] regarding pay-off of LR and $5 loans, not sending out default notices and
discussions and promises re global resolution,” and another comment on allegations
about a loan commitment says, “Susan do we need to explain this?”

2     Plaintiffs also cite rules 3-100(A) and 1-120 of the Rules of Professional Conduct,
which say, respectively, that a member of the Bar “shall not reveal information protected
from disclosure by Business and Professions Code section 6068, subdivision (e)(1)
without the informed consent of the client,” and “shall not knowingly assist in, solicit, or
induce any violation of these rules . . . .”


                                               12
every violation of a statutory prohibition necessarily removes the violator out from under
the protective umbrella of the anti-SLAPP statute.” (Id. at p. 1653.) Mendoza explained:
       “Our reading of Flatley leads us to conclude that the Supreme Court’s use of the
phrase ‘illegal’ was intended to mean criminal, and not merely violative of a statute.
First, the court in Flatley discussed the attorney’s underlying conduct in the context of
the Penal Code’s criminalization of extortion. Second, a reading of Flatley to push any
statutory violation outside the reach of the anti-SLAPP statute would greatly weaken the
constitutional interests which the statute is designed to protect. As [the defendant]
correctly observes, a plaintiff’s complaint always alleges a defendant engaged in illegal
conduct in that it violated some common law standard of conduct or statutory prohibition,
giving rise to liability, and we decline to give plaintiffs a tool for avoiding the application
of the anti-SLAPP statute merely by showing any statutory violation.” (Mendoza, supra,
182 Cal.App.4th at p. 1654, id. at p. 1648 [the defendant’s republishing to its clients of
information disclosed on “Megan’s Law” web site was protected activity,
notwithstanding statutory prohibitions on the use of such information].)
       Other courts have taken the same view, and Fremont Reorganizing Corp. v. Faigin
(2011) 198 Cal.App.4th 1153 (Fremont) is particularly germane. In that case, the
plaintiff argued that statements by the defendant lawyer to the Insurance Commissioner
violated his duties of confidentiality and loyalty owed to the plaintiff as a former client,
so his conduct was illegal and could not be protected activity under the Flatley rule. The
court, in an opinion by Justice Croskey, disagreed, citing several Court of Appeal
opinions, including Mendoza, that “have rejected attempts to apply the rule from
Flatley . . . to noncriminal conduct.” Fremont held, “[c]onsistent with these authorities,”
that “the rule from Flatley . . . is limited to criminal conduct. Conduct in violation of an
attorney’s duties of confidentiality and loyalty to a former client cannot be ‘illegal as a
matter of law’ . . . within the meaning of Flatley, so the anti-SLAPP statute is not
inapplicable on this basis.” (Id. at p. 1169.)
       For similar conclusions, see Price v. Operating Engineers Local Union No. 3
(2011) 195 Cal.App.4th 962, 971 (Price) (rejecting claim that a union’s allegedly

                                                 13
defamatory statements in flyers were not covered under the anti-SLAPP statute
because defamatory speech is illegal; “[t]he term ‘illegal’ in Flatley means criminal, not
merely violative of a statute”); see also Cross v. Cooper (2011) 197 Cal.App.4th 357,
390, 388 (“even if [the plaintiff] conclusively demonstrated that [the defendant’s]
disclosure [of information on the location of a registered sex offender] was unauthorized
as a matter of law, under Mendoza, that unauthorized, but noncriminal, conduct would
not preclude anti-SLAPP protection”); Gerbosi v. Gaims, Weil, West & Epstein, LLP
(2011) 193 Cal.App.4th 435, 446 (“We 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.”); G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 616 (failure to comply with
rule 1.20 of the California Rules of Court “is not the type of criminal activity addressed
in . . . Flatley”); Cabral v. Martins (2009) 177 Cal.App.4th 471, 481 (the defendant
attorneys’ actions in probate proceedings and litigation defense “were neither inherently
criminal nor otherwise outside the scope of normal, routine legal services”; even if their
actions “had the effect of defeating or forestalling [the plaintiff’s] ability to execute her
judgment for child support, thereby (according to [the plaintiff]) violating the child
support evasion statutes, this is not the kind of illegality involved in Flatley”).
              ii.     The Soukup case
       Plaintiffs resist the conclusion in the post-Flatley cases, relying on Soukup, supra,
39 Cal.4th 260, a decision filed the same day as Flatley. Soukup involved the then-
recently enacted SLAPPback statute (Code Civ. Proc., § 425.18), and the court said that
an illegal act “is an act ‘[f]orbidden by law,’ ” and that the term “illegal,” as used in the
SLAPPback statute, was not intended to refer only to criminal violations. (Soukup, at
p. 283 & fn. 12.) According to plaintiffs, the Supreme Court’s discussion of illegality in
Soukup “signaled” that the Flatley rule is not limited to criminal conduct and “instead
extends to any unlawful activities.”
       The courts that subsequently decided Fremont, Mendoza, Price and the other
pertinent authorities, however, did not get this “signal.” That is because the SLAPPback

                                              14
statute is a very different law with a very different purpose, as Soukup itself makes clear.
A “SLAPPback” is a malicious prosecution or abuse of process lawsuit that arises from
the filing or maintenance of an earlier cause of action that has been dismissed as a
SLAPP. The Legislature expressly stated “that a SLAPPback cause of action should be
treated differently . . . from an ordinary malicious prosecution action because a
SLAPPback is consistent with the Legislature’s intent to protect the valid exercise of the
constitutional rights of free speech and petition by its deterrent effect on SLAPP . . .
litigation and by its restoration of public confidence in participatory democracy.” (Code
of Civ. Proc., § 425.18, subd. (a).)
       As Soukup points out, Code of Civil Procedure section 425.18 “treats
SLAPPbacks differently from ordinary malicious prosecution actions in two ways. First,
it makes inapplicable to special motions to strike a SLAPPback certain procedures that
would normally apply to such motions and sets forth different procedures.” (Soukup,
supra, 39 Cal.4th at pp. 281-282.) After describing these differences, the court
continued: “The import of these provisions is to stack the procedural deck in favor of the
SLAPPback plaintiff confronted with a special motion to strike.”3 (Id. at p. 282.) “The
second way in which section 425.18 treats SLAPPbacks differently from ordinary
malicious prosecution actions is to provide a limited exemption for SLAPPbacks from the
anti-SLAPP statute in subdivision (h). That subdivision provides: ‘A special motion to
strike may not be filed against a SLAPPback by a party whose filing or maintenance of
the prior cause of action from which the SLAPPback arises was illegal as a matter of law’
(§ 425.18, subd. (h).)” (Ibid.)




3       “They do so by providing the plaintiff with both a longer timeframe—and the
means with which—to conduct discovery that might yield evidence to resist the motion to
strike, exempting the plaintiff from fees and costs even if the plaintiff’s SLAPPback
action is stricken and minimizing the delays and expense the plaintiff might otherwise
incur while the case is on appeal by limiting the unsuccessful defendant to writ review.”
(Soukup, supra, 39 Cal.4th at p. 282.)


                                             15
       It was in this context that the Soukup court observed that the term “illegal as a
matter of law” included statutory violations that were not criminal (in Soukup, a Labor
Code violation was at issue). Not only was the context different – SLAPPback suits
rather than SLAPP suits – but also the court was careful to specify the narrowness of its
holding: “[I]f a defendant’s assertedly protected constitutional activity is alleged to have
been illegal and, therefore, outside the ambit of the anti-SLAPP statute, the illegality
must be established as a matter of law either through the defendant’s concession or
because the illegality is conclusively established by the evidence presented in connection
with the motion to strike.” (Soukup, supra, 39 Cal.4th at p. 285.) Thus Soukup cited
Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356 (Paul), disapproved on other
grounds in Equilon, supra, 29 Cal.4th at page 68, footnote 5, where the defendants’ own
“moving papers . . . show[ed] that they in fact did violate the Political Reform Act when
they laundered campaign contributions . . . .”4 (Paul, supra, at p. 1361; Soukup, at
p. 284.)
       Further, Soukup tells us that, in SLAPPback cases, the “burden of establishing that
the underlying action was illegal as a matter of law” is the plaintiff’s burden. (Soukup,
supra, 39 Cal.4th at p. 286.) And, in demonstrating the illegality, “the plaintiff must
identify with particularity the statute or statutes violated by the filing and maintenance of
the underlying action. [Citation.] This requirement of identifying a specific statute . . .
prevents a plaintiff from advancing a generalized claim that a defendant’s conduct was
illegal” and “provides notice to both the defendant and the court about the particular
statute or statutes the defendant is alleged to have violated as a matter of law so as to
allow the defendant to intelligibly respond to, and the court to assess, the claim.
Additionally, . . . the plaintiff must show the specific manner in which the statute or

4      As Soukup explains, Paul held that because the “ ‘defendants have effectively
conceded the illegal nature of their election campaign finance activities for which they
claim constitutional protection . . . as a matter of law . . . such activities [were] not a valid
exercise of constitutional rights as contemplated by section 425.16.’ ” (Soukup, supra, 39
Cal.4th at p. 284.)


                                               16
statutes were violated with reference to their elements. A generalized assertion that a
particular statute was violated by the filing or maintenance of the underlying action
without a particularized showing of the violation will be insufficient to demonstrate
illegality as a matter of law.” (Soukup, supra, 39 Cal.4th at p. 287.)
       Plaintiffs’ opposition to the special motion to strike did not comply with Soukup’s
requirement that plaintiffs “provide[] notice to both the defendant and the court” as to the
particular statute they asserted defendants violated, “so as to allow the defendant to
intelligibly respond to, and the court to assess, the claim.”5 (Soukup, supra, 39 Cal.4th at
p. 287.) Plaintiffs’ papers opposing the special motion to strike did not mention Business
and Professions Code section 6068; plaintiffs’ first and only mention of section 6068
occurred in counsel’s rebuttal argument at the hearing on the motion, when counsel said
that “section 6068 actually expressly holds or provides . . . that violation of attorney-
client privilege is a tort,” and defendants “aided and abetted the violation . . . so they are
vicariously liable for that tort.” As we noted in our recitation of the facts, ante at page 8,
plaintiffs’ opposition papers claimed only that defendants “used Tregub’s inside
information to buy bankruptcy claims despite knowing that to do so was unlawful” – a
claim they do not assert on appeal.
       We think it fair to assume that had plaintiffs provided the notice required by
Soukup in their opposition papers, defendants may have disputed one or another element
of the claim, such as whether they “acted with the intent of facilitating the commission”
of Ms. Tregub’s violation of the statute. (See Gerard v. Ross (1988) 204 Cal.App.3d
968, 983 [articulating the knowledge required for aiding and abetting liability; “[a]
defendant can be held liable as a cotortfeasor on the basis of acting in concert only if he

5      In plaintiffs’ complaint, the only mention of Business and Professions Code
section 6068 appears in paragraph 158 (alleging interference with contractual relations),
where plaintiffs describe Ms. Tregub’s oral agreements with plaintiffs as containing an
implied-by-law obligation in Ms. Tregub to maintain plaintiffs’ confidences, a duty
“firmly entrenched in case law and codified in Section 6068 of the California Business
and Professions Code . . . .”



                                              17
or she knew that a tort had been, or was to be, committed, and acted with the intent of
facilitating the commission of that tort”].) And certainly if defendants had disputed any
element of the claim they aided and abetted a violation of Business and Professions Code
section 6068, no conclusion could be drawn, as a matter of law, that their conduct was
illegal. (Flatley, supra, 39 Cal.4th at p. 316 [“If . . . a factual dispute exists about the
legitimacy of the defendant’s conduct, it cannot be resolved within the first step but must
be raised by the plaintiff in connection with the plaintiff’s burden to show a probability of
prevailing on the merits.”]; 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.’ ”].)
       In short, Soukup does not help plaintiffs here. Its definition of illegality applied to
the SLAPPback statute. And even if Soukup’s broader definition of “illegal[ity] as a
matter of law” were appropriate for application in the first prong of a SLAPP analysis, it
would be improper to apply it here, where plaintiffs failed to give the “notice to both the
defendant and the court” of the particular statutory violation, as expressly required by
Soukup. (Soukup, supra, 39 Cal.4th at p. 287.)
       In sum, Soukup does not advance plaintiffs’ claim of illegality, and the authorities
after Flatley reject it.
       b.      The gravamen of the complaint
       Plaintiffs next argue that, apart from the illegality claim, their claims do not arise
from protected activity. They articulate their contention this way: “Even though the
background of this lawsuit is the litigation between Molner and Bergstein, the defendants
here are not being sued because they are Molner’s litigation counsel or for any written or
oral statement they made in a judicial proceeding. Rather, they are being sued for the
unprotected conduct of aiding and abetting the breach of Tregub’s fiduciary duties to
[plaintiffs], for receiving confidential and privileged information belonging to [plaintiffs],
for interfering with Tregub’s contractual obligation to [plaintiffs] to maintain their
confidences, and for interfering with [Bergstein’s] prospective economic advantage.”

                                               18
       Plaintiffs’ own words reveal their mistaken view of the applicable legal principles.
“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.” (Navellier v.
Sletten, supra, 29 Cal.4th at p. 92.) Thus we examine “the specific acts of wrongdoing”
alleged, “without particular heed to the form of action within which it has been framed”
(Peregrine Funding, supra, 133 Cal.App.4th at p. 671), and “the critical point is whether
the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s
right of petition or free speech. [Citations.]” (City of Cotati v. Cashman, supra,
29 Cal.4th at p. 78.)
       Plainly, “aiding and abetting the breach of Tregub’s fiduciary duties” and
“interfering with Tregub’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. Almost all of the “specific acts of
alleged wrongdoing” in the complaint are litigation activities. We have described the
complaint in detail and will not repeat that description here, but the factual basis for
defendants’ allegedly tortious activity is centered in defendants’ role as counsel for
Mr. Molner and Aramid: “Molner enlisted defendants for the litigation prong of his
campaign.” “Defendants knowingly used . . . confidential, privileged . . . information . . .
to carry out the litigation attack . . . .” “Tregub began working with defendants to help
coordinate and organize” the bankruptcy proceedings. “Defendants knowingly used
Tregub’s assistance in devising the legal strategy to be employed . . . .” Defendants
“exchanged drafts of pleadings” with Ms. Tregub. “Stroock and Rozansky work[ed] with
Tregub to draft multiple lawsuits against plaintiffs.” “The litigation, litigation fees and
costs, . . . and negative publicity . . . have resulted in nearly incalculable injury . . . .”
And on and on.
       Plaintiffs rely on Coretronic Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th
1381 (Coretronic), but their reliance is misplaced. In Coretronic, the plaintiffs disclosed
confidential information to the defendant law firm to aid in an evaluation of insurance

                                                19
coverage for a trade dispute lawsuit filed against the plaintiffs, and the defendant law
firm at the same time undertook representation, in another matter, of the company (E&S)
that was suing the plaintiffs. The plaintiffs sued the law firm, alleging it concealed its
status as E&S’s counsel in the other action to gain access to the plaintiffs’ sensitive
information that would benefit E&S in its lawsuit against the plaintiffs. (Id. at pp. 1384-
1385, 1387.) We concluded that the gravamen of the complaint was “premised on
defendants’ failure to disclose [their] representation of E&S, while obtaining from
plaintiffs their confidential information involving their defense of the lawsuit E&S
brought against them.” (Id. at p. 1391.) While the concealment occurred in the context
of litigation, it was “clear that any litigation activity is only incidental to plaintiffs’
allegations of wrongdoing.” (Ibid.)
       In short, in Coretronic, the lawsuit arose from the law firm’s concealment of its
representation of E&S while obtaining plaintiff’s sensitive information, not from the law
firm’s protected activity representing their clients in pending or threatened litigation.
(Coretronic, supra, 192 Cal.App.4th at p. 1392.) As we said there, “it is not [the law
firm’s] advocacy that is the target of the complaint,” but rather the fact of the law firm’s
dual representation that was the basis for the plaintiffs’ claims of concealment and fraud.
(Id. at p. 1392.) In this case, by contrast, it is precisely the defendants’ advocacy on
behalf of their clients in the loan and bankruptcy litigation that forms the basis for all of
plaintiffs’ causes of action.
       Peregrine Funding explains the point nicely: “Plaintiffs . . . argue the
fundamental basis or gravamen of their claims rests in [the defendant law firm’s]
breaches of duty and not its petitioning activity. But the fact is that some of the alleged
actions constituting these breaches of duty involved petitioning activity the firm
undertook on behalf of its client . . . . [S]ome of the specific conduct complained of
involves positions the firm took in court, or in anticipation of litigation . . . . We cannot
conclude these allegations of classic petitioning activity are merely incidental or
collateral to plaintiff’s claims against [the law firm].” (Peregrine Funding, supra,
133 Cal.App.4th at p. 673; id. at p. 672 [law firm “orchestrated the bankruptcies of the

                                                20
entity-plaintiffs and then, after it withdrew from their representation, selectively
responded to a discovery request by withholding documents that would have been
harmful to . . . themselves”; these acts “appear to constitute [protected conduct] in that
they were litigation tactics the firm employed to benefit its client[’]s position in an
ongoing lawsuit”].)
       Plaintiffs cite other cases where the plaintiffs have sued their former counsel for
breach of the duty of loyalty, and courts have found those claims are not subject to the
anti-SLAPP statute. But in those cases, as in Coretronic, the plaintiffs “do not challenge
[the defendant law firm’s] conduct in the litigation” (Coretronic, supra, 192 Cal.App.4th
at pp. 1392-1393), but instead base their claims on the defendant attorney’s acceptance of
representation adverse to the former client. (E.g., Benasra v. Mitchell Silberberg &
Knupp LLP (2004) 123 Cal.App.4th 1179, 1189, 1187 [“once the attorney accepts a
representation in which confidences disclosed by a former client may benefit the new
client due to the relationship between the new matter and the old, he or she has breached
a duty of loyalty”; “[t]he breach of fiduciary duty lawsuit may follow litigation pursued
against the former client, but does not arise from it”; breach of the duty of loyalty “occurs
whether or not confidences are actually revealed in the adverse action”].)
       Here, unlike any of the breach of loyalty cases, the “activity that gives rise to
[defendants’] asserted liability” (Navellier v. Sletten, supra, 29 Cal.4th at p. 92) is
defendants’ conduct in receiving and using confidential information to prepare for and
prosecute litigation against plaintiffs. In the complaint’s own words, defendants
“knowingly used the confidential, privileged, and/or proprietary information of Plaintiffs
and affiliated entities to carry out a litigation attack on Plaintiffs and affiliated entities.”
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.
2.     The Second Prong of the Statute: the Probability of Prevailing
       Plaintiffs next contend they have in any event shown a probability of prevailing on
their claims. They point out that under this second prong of the anti-SLAPP statute, they
need only present evidence that, if believed, would be sufficient to establish a prima facie

                                               21
case and sustain a judgment in their favor. (Navellier v. Sletten, supra, 29 Cal.4th at
pp. 88-89.) Defendants assert, however, that plaintiffs cannot prevail because their
claims are barred as a matter of law, both by the litigation privilege and by the statute of
limitations. We agree with both points.6
       a.     The litigation privilege
       “A plaintiff cannot establish a probability of prevailing if the litigation privilege
precludes the defendant’s liability on the claim.” (Fremont, supra, 198 Cal.App.4th at
p. 1172.) The litigation privilege is defined in Civil Code section 47, subdivision (b)7
(section 47(b)), and “precludes liability arising from a publication or broadcast made in a
judicial proceeding or other official proceeding.” (Fremont, at p. 1172.) Under the usual
formulation of the privilege, it 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.) “Many cases have
explained that section 47(b) encompasses not only testimony in court and statements
made in pleadings, but also statements made prior to the filing of a lawsuit, whether in
preparation for anticipated litigation or to investigate the feasibility of filing a lawsuit.”
(Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 361.)
       To effect its purposes – access to the courts without fear of later harassment by
derivative tort actions, encouraging open communication and zealous advocacy,

6      The Levene Neale defendants also assert that plaintiffs failed to show a probability
of prevailing on their claims against them on several additional bases, including that the
claims are barred by collateral estoppel and preempted by federal law. Because our
decision on other grounds is dispositive, we need not consider these contentions.

7       “A privileged publication or broadcast is one made: . . . [¶] . . . [¶] (b) In any
(1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding
authorized by law, or (4) in the initiation or course of any other proceeding authorized by
law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of
Part 3 of the Code of Civil Procedure [(writ of mandate)],” with exceptions not applicable
here. (Civ. Code, § 47, subd. (b).)


                                               22
promoting complete and truthful testimony, giving finality to judgments, and avoiding
endless litigation – the litigation privilege “is absolute and applies regardless of malice,”
and “ ‘has been given broad application.’ ” (Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1063.)
         In a two-and-a-half page argument, plaintiffs contend their claims are not barred
by the litigation privilege “because the complaint does not challenge defendants’
communicative acts,” but rather challenges “the lawyers’ non-communicative conduct of
aiding and abetting Tregub’s breach of fiduciary duty and facilitating Tregub’s breach of
contract with [plaintiffs].” This contention contains the same flaw infecting plaintiffs’
assertion that their claims do not arise from protected activity: the complaint itself
plainly demonstrates otherwise. Notably, nowhere in plaintiffs’ argument do they
provide record citations for defendants’ “non-communicative conduct.”
         Plaintiffs tell us that two cases are “instructive.” One is Kimmel v. Goland (1990)
51 Cal.3d 202 (Kimmel) and the other is Susan S. v. Israels (1997) 55 Cal.App.4th 1290
(Israels). In Kimmel, the Supreme Court held that “noncommunicative acts” --
specifically, “the illegal recording of confidential telephone conversations” for “the
purpose of gathering evidence to be used in future litigation” -- were not privileged.
(Kimmel, at p. 205.) As the court said, the litigation privilege “does not bar recovery for
injuries from tortious conduct regardless of the purpose for which such conduct is
undertaken.” (Ibid.) Similarly, in Israels, the court held that the litigation privilege
“does not shield defendants [including the lawyer representing the defendant in a criminal
proceeding for sexual battery] from liability for reading and disseminating [the
plaintiff’s] private mental health records for the purpose of gathering evidence to be used
in the course of a criminal proceeding.” (Israels, at p. 1301.) Israels held the plaintiff’s
invasion of privacy action did not depend on “the ‘publication or ‘broadcast’ of her
mental health records but rests on [the defendant’s] conduct in reading those records” –
conduct that was “similar to the defendants’ conduct of . . . secretly recording telephone
conversations” in Kimmel. (Israels, at p. 1299.) (Notably, Israels also held that the
plaintiff’s abuse of process and infliction of emotional distress claims, based on

                                              23
“subpoenaing, communicating and cross-examining [the plaintiff] with her mental health
records,” were barred by the litigation privilege. (Id. at pp. 1303-1304.))
       Neither of these cases assists the plaintiffs here, because they do not identify any
of defendants’ conduct that was not a communication made in a judicial proceeding (or
prior thereto) to achieve the objects of the litigation. Simply claiming that “aiding and
abetting Tregub’s breach of fiduciary duty and facilitating Tregub’s breach of contract” is
“non-communicative conduct” does not make it so.
       In short, defendants have established all the elements necessary to assert the
litigation privilege. As the trial court pointed out, plaintiffs’ claims are based on
allegations that defendants solicited and used confidential information for the purpose of
filing various actions against plaintiffs. The complaint expressly alleges communicative
activity throughout. These communicative activities of counsel were made in or in
anticipation of judicial proceedings, and were plainly made “to achieve the objects of the
litigation” and had “some connection or logical relation to the action.” (Silberg v.
Anderson, supra, 50 Cal.3d at p. 212.) Consequently, the litigation privilege applies to
bar plaintiffs’ claims.
       Plaintiffs add a final paragraph to their argument on this point, quoting from
Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1149, where the court held that the
litigation privilege should not be extended to “ ‘litigating in the press.’ ” (See id. at p.
1139 [defendants’ statements at a press conference claiming plaintiff knowingly and
intentionally made false accusations against one of defendants in order to extort money
from him were not protected by the litigation privilege].) From this (correct) premise,
plaintiffs state, without further explanation, that “the intentional interference claims based
upon defendants’ false press statements are likewise not covered by the litigation
privilege.”
       While plaintiffs do not cite to the record in their argument, we presume they are
referring to an allegation in the introductory section of the complaint, where they allege
that “Stroock partner and well known entertainment transactional [lawyer] Schuyler
Moore even bragged to the press that his clients, Aramid and Molner, and his firm would

                                              24
stop at nothing to kill Bergstein’s other business ventures – specifically his efforts to
arrange for the purchase and sale of Miramax from Disney.” (In their opposition,
defendants presented an email from a Bloomberg News reporter to a lawyer involved in
the Miramax acquisition, saying that “Schuyler Moore will be quoted saying that
creditors of Mr. Bergstein’s companies would block any attempt to acquire the film
studio [Miramax].”)
       With that exception, there is nothing in the complaint about any statements by any
of the defendants to the press, much less any false statements. Nor is it clear that the
statement in the reporter’s email is tortious. The complaint alleges there were many
negative articles in the press, written by a reporter who spoke with Mr. Molner and
Ms. Tregub, that damaged Mr. Bergstein, and that “Tregub communicated with reporters
and shared Plaintiffs’ and affiliated entities’ confidential, privileged, and/or proprietary
information long before any litigation was filed.” But these are not allegations relating to
defendants. In short, under Rothman v. Jackson, the litigation privilege would not shield
defendants from liability based on making false statements to the press, but the complaint
makes no such allegations.
       b.     The statute of limitations
       Defendants also contend plaintiffs cannot prevail on their claims because they are
barred as a matter of law by the statute of limitations. We agree.
       Under Code of Civil Procedure section 340.6 (section 340.6), “[a]n action against
an attorney for a wrongful act or omission, other than for actual fraud, arising in the
performance of professional services shall be commenced within one year after the
plaintiff discovers, or through the use of reasonable diligence should have discovered, the
facts constituting the wrongful act or omission, or four years from the date of the
wrongful act or omission, whichever occurs first.” (Id., subd. (a).)
       In this case, plaintiffs filed suit on April 20, 2012. But:
       On March 25, 2010, more than two years earlier, plaintiff Bergstein and others
filed their complaint against Ms. Tregub for breach of fiduciary duty and professional



                                              25
negligence, alleging that Ms. Tregub “provided confidential information to Aramid’s
counsel . . . Strook Strook [sic] & Lavan LLP . . . .” And:
       On March 24, 2010, plaintiff Bergstein executed a declaration stating that, after he
learned of the litigation Aramid filed against him and of the involuntary bankruptcy
filings by the Levene Neale firm, he “immediately suspected that Tregub might be behind
both the Aramid and the bankruptcy filings.” And:
       On March 26, 2010, plaintiff Bergstein’s lawyers wrote to Mr. Rozansky and
another lawyer at the Stroock firm about the bankruptcy proceedings and the Aramid
complaint, and said, among other things: “We have received information that Susan
Tregub . . . has been assisting you and your law firm as well as certain alleged creditors
. . . in connection with those proceedings and in connection with the Aramid Complaint.
It further appears that Ms. Tregub has disclosed to you and your law firm . . . confidential
information of [plaintiffs] that Ms. Tregub obtained while representing them . . . .” And,
“the [plaintiffs] intend to pursue any and all legal remedies they have that arise out of the
use of any and all confidential information and assistance provided by Ms. Tregub . . . .
Please be aware that we consider any communications between your firm and Ms. Tregub
to be evidence that will have to be produced in any resulting litigation that will hereafter
follow to determine the extent to which your firm was complicit in Ms. Tregub’s breach
of her fiduciary obligations . . . .” And:
       On April 2, 2010, after receiving a letter from Stroock lawyer Rozansky saying the
Stroock lawyers had not received confidential information from Ms. Tregub, plaintiffs’
lawyers again wrote to the Stroock lawyers. They said, for example: “[F]or at least the
past several months attorneys in your firm have been communicating with Ms. Tregub,
including receiving information from Ms. Tregub pertaining to some or all of the
Plaintiffs and their various legal and business affairs.” Those communications
constituted “improper dissemination of confidential information” and violated attorney-
client privilege, and “your firm’s involvement in these actionable activities will not be
tolerated. Moreover, your firm may be exposed to independent tort liability and ethics
violations for receipt and/or use of such wrongfully obtained information from

                                             26
Ms. Tregub and Plaintiffs reserve all rights related to your conduct.” The letter
demanded immediate return of all documents in any form between the firm and
Ms. Tregub pertaining to plaintiffs or their business dealings, and demanded the Stroock
firm cease and desist from engaging in such communications with Ms. Tregub. Also:
       On September 24, 2010, counsel for one of the plaintiff-affiliated alleged debtors
in the involuntary bankruptcy proceedings filed a motion to disqualify the Levene Neale
firm on the ground that the firm “knowingly utilized confidential privileged information
of Alleged Debtors obtained by the Levene firm from their co-counsel Susan Tregub,”
and “knowingly assisted and aided Tregub in the violation of her duties of loyalty and
confidentiality to the Alleged Debtors.”
       On October 26, 2010, in a cross-complaint against Stroock’s client Aramid,
plaintiffs alleged that Aramid aided and abetted Tregub to breach her fiduciary duty by
“inviting Tregub to attend strategy sessions with counsel for the Aramid Defendants,
which Tregub did attend and participate in, to strategize about ways to put maximum
pressure on Bergstein, including litigation to be filed against [Bergstein and others] and
involuntary bankruptcy proceedings to be filed against [affiliated entities] . . . .”
       The documents just described show that, by their own admission, plaintiffs
“discover[ed], or through the use of reasonable diligence should have discovered, the
facts constituting [defendants’] wrongful act or omission” (Code of Civ. Proc., § 340.6,
subd. (a)) more than one year before they filed this lawsuit. The rule on when the statute
of limitations begins to run is plain: “Under the discovery rule, the statute of limitations
begins to run when the plaintiff suspects or should suspect that her injury was caused by
wrongdoing, that someone has done something wrong to her. . . . [T]he limitations period
begins once the plaintiff ‘ “ ‘has notice or information of circumstances to put a
reasonable person on inquiry . . . .’ ” ’ [Citation.] A plaintiff need not be aware of the
specific ‘facts’ necessary to establish the claim; that is a process contemplated by pretrial
discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive
to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion
exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to

                                               27
find her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111 (Jolly), fn.
omitted.)
       Plaintiffs counter by contending section 340.6 does not apply, and instead the
four-year statute of limitations in Code of Civil Procedure section 343 – the limitations
period for “[a]n action for relief not hereinbefore provided for” – applies. This is
because, they say, they are not suing defendants for “a wrongful act or omission . . .
arising in the performance of professional services,” but rather for the “independently
tortious conduct” of aiding and abetting Tregub’s breach of fiduciary duty, interfering
with Ms. Tregub’s contract with Mr. Bergstein, and so on. We have heard, and rejected,
this contention before, and it fares no better in the context of the statute of limitations.
       It is not correct, as a matter of fact and of law, to say that “Bergstein’s aiding and
abetting claims do not arise from the defendants’ performance of their professional
services . . . .” Plaintiffs’ complaint shows they do as a matter of fact: as we have seen,
virtually all of defendants’ allegedly tortious conduct occurred in the performance of
legal services for their clients. As for the law, “[w]hen determining which statute of
limitations applies to a particular action, a court considers what the principal purpose or
‘gravamen’ of the action is, rather than the form of action or the relief demanded.” (Yee
v. Cheung (2013) 220 Cal.App.4th 184, 194.)
       Further, we reject defendants’ contention that section 340.6 “only applies when an
attorney is sued for professional negligence.” The court in Stoll v. Superior Court (1992)
9 Cal.App.4th 1362 held that a former client’s claim against his former lawyer for breach
of fiduciary duty is governed by section 340.6. (Id. at pp. 1363-1364, 1369.) And, while
there is a split of authority, two courts, including this court, have held that section 340.6
is not confined to malpractice actions by a plaintiff against his own attorney, but also
applies to malicious prosecution claims by a third party against an attorney. (Vafi v.
McCloskey (2011) 193 Cal.App.4th 874, 880 (Vafi) [“the one-year limitations period
under section 340.6 applies to an action for malicious prosecution against an attorney
rather than the two-year limitations period which applies to malicious prosecution actions
generally”]; accord, Yee v. Cheung, supra, 220 Cal.App.4th at pp. 194, 195 [“The words

                                              28
of the statute are quite broad, but they are not ambiguous: any time a plaintiff brings an
action against an attorney and alleges that attorney engaged in a wrongful act or
omission, other than fraud, in the attorney’s performance of his or her legal services, that
action must be commenced within a year after the plaintiff discovers, or should have
discovered, the facts that comprise the wrongful act or omission.”]; contra, Roger
Cleveland Golf Co., Inc. v. Krane & Smith, APC (2014) 225 Cal.App.4th 660, 668
[disagreeing with Vafi and Yee and holding that the applicable statute of limitations for
malicious prosecution is Code of Civil Procedure section 335.1, whether the party being
sued is the former adversary or the adversary’s attorneys].)
       We are not persuaded to change our view that, based on its plain language,
section 340.6 applies to all actions “against an attorney for a wrongful act or omission,
other than for actual fraud, arising in the performance of professional services . . . .” (Id.
, subd. (a); Vafi, supra, 193 Cal.App.4th at p. 881.)
       Plaintiffs next insist they have produced prima facie evidence showing their
claims are timely under the discovery rule. They say they did not learn “the facts
constituting [defendants’] wrongful act or omission” (section 340.6) until April 26, 2011,
when, according to declarations from Mr. Bergstein and his counsel, “[t]he very first
documents showing the communications between Tregub and [defendants] were . . .
produced in the Tregub case” and “[u]ntil that time, Defendants . . . denied that they had
received confidential information from Tregub and engaged in scorched earth
litigation . . . to prevent us from obtaining this evidence.”
       While we accept these assertions as true, they do not affect the accrual of the
statute of limitations. That is perfectly plain from Jolly: “A plaintiff need not be aware
of the specific ‘facts’ necessary to establish the claim; that is a process contemplated by
pretrial discovery”; so long as a “suspicion of wrongdoing” exists, “it is clear that the
plaintiff must go find the facts . . . .” (Jolly, supra, 44 Cal.3d at p. 1111.) Plaintiffs do
not and cannot say they had no suspicion of wrongdoing by defendants until April 26,
2011; their own statements show otherwise. Further, their claims that “the discovery rule
must prevent the statute of limitations from running until [they] had sufficient evidence to

                                              29
support their prima facie case” is likewise unsupported by any pertinent legal authority,
and is affirmatively contradicted by Jolly.
       Finally, plaintiffs contend defendants are equitably estopped from raising the
statute of limitations as a defense, “because of their active efforts to keep plaintiffs from
uncovering the truth of their activities,” and they have “satisfied the requirements for
fraudulent concealment.” These assertions are based upon the defendants’ “repeated[]
deni[al]” of receiving confidential information and their resistance to discovery in the
Tregub case. These claims are meritless.
       Among other things, equitable estoppel requires a showing defendants’ conduct
“actually and reasonably induced plaintiffs to forbear suing” within the limitations
period. (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 385, italics omitted.) Thus,
when a defendant’s conduct has deliberately induced the plaintiff to delay filing suit, the
defendant will be estopped from availing himself of this delay as a defense. This is
obviously not such a case. As the trial court aptly observed, “denials of wrongdoing are
not the same as fraudulent concealment,” and “it would be somewhat surprising” if
defendants “were to issue a mea culpa and beg forgiveness” when they received
counsel’s demand letters. Plainly, as shown by plaintiffs’ April 2, 2010 letter responding
to Stroock’s denial it received confidential information, plaintiffs did not believe these
denials, and cannot rely on them now to create an estoppel. Moreover, as Lantzy pointed
out, a defendant’s statement or conduct inducing delay in filing suit “must amount to a
misrepresentation bearing on the necessity of bringing a timely suit; the defendant’s mere
denial of legal liability does not set up an estoppel.” (Id. at p. 384, fn. 18, citing cases.)
       Nor has there been any showing of fraudulent concealment. Indeed, plaintiffs
merely claim they “satisfied the requirements for fraudulent concealment” without
troubling to state those requirements and how they were met or to cite relevant
authorities. Of course, “[i]t has long been established that the defendant’s fraud in
concealing a cause of action against him tolls the applicable statute of limitations, but
only for that period during which the claim is undiscovered by plaintiff or until such time
as plaintiff, by the exercise of reasonable diligence, should have discovered it.” (Sanchez

                                              30
v. South Hoover Hospital (1976) 18 Cal.3d 93, 99-100.) As already discussed, it is clear
that plaintiffs had already discovered their claims in March and April 2010, when they
told defendants that their communications with Ms. Tregub and involvement in “these
actionable activities” would not be tolerated. No fraudulent concealment has been or
could be shown in these circumstances.
       In sum, section 340.6 means exactly what it says: an action against an attorney for
a wrongful act (except actual fraud) arising in the performance of professional services
must be commenced within one year of discovery of the facts constituting the wrongful
act. Nothing occurred in this case to toll the statute or estop defendants from raising it as
a defense. Because plaintiffs did not file their lawsuit within the one-year limitations
period, they cannot show a probability of prevailing on the merits of their claims.
3.     Amendment of the Complaint
       Plaintiffs contend that “false statements made to the press about Bergstein are not
protected conduct,” and they have therefore stated a viable claim for tortious interference
with prospective economic advantage, “even if there are other allegations in the same
cause of action that are properly subject to an anti-SLAPP motion,” citing Wallace v.
McCubbin (2011) 196 Cal.App.4th 1169, 1212 (“where a cause of action arises from both
protected activity and unprotected activity, the plaintiff may satisfy its obligation in the
second prong by simply showing a probability of prevailing on any part of the cause of
action”). They also claim they should have leave to amend the complaint to raise “non-
protected claims, including defendants’ false statements to the press,” citing Nguyen-Lam
v. Cao (2009) 171 Cal.App.4th 858, 871-873 (trial court properly authorized plaintiff to
amend her defamation complaint to plead actual malice, in conformity with the proof
presented at the hearing on the anti-SLAPP motion; policy concerns against amendment
in the anti-SLAPP context did not apply in that circumstance).
       Plaintiffs’ contentions have no merit. First, as we have already pointed out, the
complaint did not allege defendants made false statements to the press, and plaintiffs
produced no evidence constituting a prima facie showing of such statements. Second,
this is not a case like Nguyen-Lam v. Cao, where the proof presented at the hearing

                                              31
actually established a probability of prevailing on the merits, so the general rule against
allowing a SLAPP plaintiff to amend a complaint after a showing of protected activity
did not apply. And third, even now plaintiffs in their appellate briefs do not demonstrate
how they would amend the complaint to allege defendants made false statements to the
press, or how they would allege any other “non-protected claims.” There was no error in
the trial court’s refusal to permit amendment.
4.     Attorney Fees
       Plaintiffs appealed the attorney fee order, but argue only that the award should be
reversed if the order granting the anti-SLAPP motions is reversed. Because we affirm the
trial court’s grant of the anti-SLAPP motions, we also affirm the attorney fee order.
                                      DISPOSITION
       The orders are affirmed. Defendants shall recover their costs on appeal.


                                                         GRIMES, J.
       We concur:
                     BIGELOW, P. J.




                     FLIER, J.




                                             32
Filed 5/8/15
                           CERTIFIED FOR PUBLICATION


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                     DIVISION EIGHT


DAVID BERGSTEIN et al.,                              B244896

        Plaintiffs and Appellants,                   (Los Angeles County
                                                     Super. Ct. No. BC483164)
        v.
                                                   ORDER CERTIFYING OPINION FOR
STROOCK & STROOCK & LAVAN LLP                              PUBLICATION
et al.,
                                                     [NO CHANGE IN JUDGMENT]
        Defendants and Respondents.



THE COURT:
        The opinion in the above-entitled matter filed on May 1, 2015, was not certified
for publication in the Official Reports. For good cause, it now appears that the opinion
should be published in the Official Reports and it is so ordered.
        There is no change in the judgment.




________________________________________________________________________
BIGELOW, P. J.                   FLIER, J.                   GRIMES, J.




                                              33
