Filed 7/6/26 Pro Legal Funding v. Allor CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
PRO LEGAL FUNDING, LLC B336861
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 23STCV07526)
v.
DAVID ALLOR,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Robert Broadbelt, Judge. Affirmed.
The Hundley Law Firm and Paul B. Hundley for Defendant
and Appellant.
Wolk & Levine, Sarah R. Wolk and Zachary Levine for
Plaintiff and Respondent.
INTRODUCTION
Pro Legal Funding, LLC had two liens on any recovery
awarded to Derek Alonso in Alonso’s personal injury litigation.
Alonso, with defendant David Allor as his counsel, obtained a
verdict and judgment in his favor. The judgment funds were
distributed without paying Pro Legal’s liens.
Pro Legal then sued Alonso and Allor for failing to pay the
liens. Allor filed a special motion to strike under Code of Civil
Procedure section 425.16, the anti-SLAPP statute.1 The trial
court denied Allor’s motion on the grounds that Allor failed to
meet his burden at the first step of the anti-SLAPP analysis.
Allor appealed.
We affirm. Allor has not demonstrated that Pro Legal’s
causes of action arise from protected activity. Failing to pay liens
is not protected activity, and any protected attorney-client
communication about paying the liens was incidental to Pro
Legal’s causes of action.
FACTUAL AND PROCEDURAL BACKGROUND
A. Background
In March 2019, Alonso sued Premium J. Trucking, Inc. in
Riverside County for personal injuries. In two transactions in
March and June 2019, Alonso sold to Pro Legal a “contingent
right to a portion of the Proceeds” of his legal claim against
Premium J. for $40,500.00. In return, Alonso agreed to pay Pro
Legal $80,500.00 from any recovery he obtained in the Premium
J. litigation.
1 All undesignated section references are to the Code of Civil
Procedure. “SLAPP” stands for “strategic lawsuits against public
participation.” (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7
Cal.5th 133, 139.)
2
In September 2019, Alonso’s former counsel substituted
out, and Allor substituted in as Alonso’s counsel. Following a
trial in October 2021, Alonso secured a $600,000 judgment
against Premium J. The judgment was satisfied. Pro Legal has
not been paid.
B. Pro Legal’s complaint
In April 2023, Pro Legal filed a complaint against Alonso
and Allor, alleging the following facts. Pro Legal’s March and
June 2019 loans2 to Alonso were for $20,250 each, with
repayment in the amount of $40,250 each, secured by two liens
on Alonso’s claims against Premium J. Allor was aware of the
loans and liens, and for a time he regularly updated Pro Legal
about the status of the litigation. At some point Alonso and Allor
stopped communicating with Pro Legal. Alonso won his lawsuit
against Premium J. in October 2021. Premium J. satisfied the
judgment in November 2021, thus triggering the liens’ repayment
terms. Alonso and Allor did not inform Pro Legal about the
verdict and did not pay the liens.
Pro Legal alleged ten causes of action relating to the
unpaid liens: 1. breach of contract, 2. intentional interference
with contractual relations, 3. intentional interference with
prospective economic advantage, 4. negligent interference with
prospective economic advantage, 5. common count: money had
and received, 6. conversion, 7. civil conspiracy, 8. negligence, 9.
breach of fiduciary duty, and 10. breach of implied-in-fact
contract. All causes of action except breach of contract included
Allor. Each cause of action was a variation on a single theme:
Alonso and/or Allor had an obligation to satisfy Pro Legal’s liens
2 The parties dispute whether these were “loans.” The
distinction does not matter for purposes of this appeal.
3
from Alonso’s litigation recovery, Alonso and Allor failed to pay
Pro Legal, and Pro Legal suffered damages as a result.
Some causes of action alleged that Alonso and Allor
communicated and worked together to deprive Pro Legal of its
money. For example, in the causes of action for intentional
interference with contractual relations, intentional interference
with prospective economic advantage, and negligent interference
with prospective economic advantage, Pro Legal alleged that
Allor knew of the liens, induced Alonso’s breach of the two loan
agreements, and encouraged Alonso to not satisfy the liens. In
the cause of action for civil conspiracy, Pro Legal alleged that
Alonso and Allor “agreed to a common plan or design to avoid or
disrupt Pro Legal’s lien rights.”
C. Anti-SLAPP special motion to strike
1. Motion
Allor filed a special motion to strike under section 425.16.
Under section 425.16, “[a] cause of action arising from a person’s
act in furtherance of the ‘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 claim will
prevail.” (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781,
788, citing § 425.16, subd. (b)(1).) “Anti-SLAPP motions are
evaluated through a two-step process. Initially, the moving
defendant bears the burden of establishing that the challenged
allegations or claims ‘aris[e] from’ protected activity in which the
defendant has engaged.” (Park v. Board of Trustees of California
State University (2017) 2 Cal.5th 1057, 1061 (Park).) “If the
4
defendant carries its burden, the plaintiff must then demonstrate
its claims have at least ‘minimal merit.’” (Ibid.)
Allor argued that the first prong of the anti-SLAPP
analysis was met because “[T]he alleged acts of wrongdoing by
Allor related to his legal advice to Alonso regarding the judgment
and the claims against that judgment and the distribution of the
judgment pursuant to that advice. As such, the gravamen of all .
. . causes of action against Allor relate to his advice and counsel
concerning litigation, which is protected activity.”
Allor argued that the second prong of the anti-SLAPP
analysis was met, because the purchase agreements were void,
Allor owed no duty to Pro Legal, and Pro Legal’s claims were
barred by the litigation privilege.
2. Opposition and reply
Pro Legal opposed Allor’s motion. Pro Legal framed the
issue as “whether a lawyer’s illegal retention of client funds
somehow immunizes that lawyer from civil liability merely
because that lawyer claims his misdeeds were conducted in loose
connection with the practice of law.” It argued, “The anti-SLAPP
statute was not designed to immunize a lawyer entrusted with
client funds to swindle lienholders.”
Pro Legal argued that Allor failed to meet the first prong of
the anti-SLAPP analysis because “misappropriating client funds
and violating client directives is not ‘legal advice.’ It is theft.” Pro
Legal asserted that the “gravamen of the claims here is Allor’s
misappropriation of funds” owed to Pro Legal, and to the extent
any communication between Allor and Alonso was implicated, “it
could not have been more than incidental to the misconduct.”
Pro Legal also argued that it could demonstrate a
probability of success for the second step of the anti-SLAPP
5
analysis. It asserted that its agreements with Alonso were legal,
that Allor had a duty to comply with Alonso’s wishes to pay the
liens with the litigation recovery, and failing to pay lienholders is
not protected by the litigation privilege.
Allor filed a reply in support of his motion, and objected to
some of the evidence Pro Legal submitted with its opposition.
Pro Legal objected to evidence Allor submitted with his reply.
3. Ruling
The trial court denied Allor’s motion. The court stated in a
written ruling that Allor did not meet his burden to show that the
causes of action alleged against him arose from protected activity.
The court acknowledged that communication in litigation is
generally considered protected activity, but stated that Allor “has
not sufficiently (1) identified the wrongful acts that form the
basis for each cause of action, or (2) explain[ed] how those alleged
acts constitute protected activity. [Allor] therefore has not shown
that each of the . . . causes of action arises from the acts
performed by [Allor] as part of his legal representation of” Alonso.
The court “acknowledge[d] that some of the claims set forth in the
Complaint may implicate protected activity,” in that the
complaint alleged that Allor encouraged Alonso not to pay Pro
Legal. But the actual conduct underlying Pro Legal’s claims—the
distribution of the judgment funds—was not protected activity.
The court therefore did not consider the second step of the
analysis.
Allor timely appealed. (Code Civ. Proc., § 904.1, subd.
(a)(13).)
DISCUSSION
Allor contends his anti-SLAPP motion should have been
granted because Pro Legal’s claims arise from Allor’s
6
representation of Alonso in litigation, including Allor’s legal
advice to Alonso regarding the distribution of the judgment
funds. Pro Legal argues that the distribution of judgment funds
is not protected activity, so the motion was properly denied.
A. Legal standards
“We review de novo the grant or denial of an anti-SLAPP
motion. [Citation.] We exercise independent judgment in
determining whether, based on our own review of the record, the
challenged claims arise from protected activity.” (Park, supra, 2
Cal.5th at p. 1067.) The appellant bears the burden of
affirmatively demonstrating error. (Balla v. Hall (2021) 59
Cal.App.5th 652, 671.)
An anti-SLAPP motion may challenge 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.” (§
425.16, subd. (b)(1).) Such acts include “(1) any written or oral
statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by
law, [or] (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.” (Id., subd. (e).)3
3 Section 425.16, subdivision (e)(3) and (4) address
communication made in connection with an issue of public
interest. Allor does not specify which of the four categories of
speech is at issue here, but we presume he intended to invoke
section 425.16, subdivision (e)(1) and (2), which reference
litigation. He does not argue that this case involves an issue of
public interest.
7
As stated above, “[a]nti-SLAPP motions are evaluated
through a two-step process. Initially, the moving defendant bears
the burden of establishing that the challenged allegations or
claims ‘aris[e] from’ protected activity in which the defendant has
engaged.” (Park, supra, 2 Cal.5th at p. 1061.) Thus, a
“defendant’s first-step burden is to identify the activity each
challenged claim rests on and demonstrate that that activity is
protected by the anti-SLAPP statute.” (Wilson v. Cable News
Network, Inc. (2019) 7 Cal.5th 871, 884.)
B. Allor has not met his first-step burden
Pro Legal alleged in its complaint that Alonso and Allor
failed to pay Pro Legal’s liens. Pro Legal argues, “Regardless of
what communication took place” between Alonso and Allor, “the
act of improperly distributing funds” is not protected activity
under section 425.16. We agree.
Although some litigation-related communication
constitutes protected activity under section 425.16, failing to pay
a lien does not implicate any of the categories of protected
activity in the statute. “‘Any act’” under section 425.16,
subdivision (b)(1) “includes communicative conduct such as the
filing, funding, and prosecution of a civil action. [Citation.] This
includes qualifying acts committed by attorneys in representing
clients in litigation.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1056.) However, the act of paying or not paying a creditor,
without more, is not communicative conduct even if it relates to
litigation. It is not an “act . . . in furtherance of the . . . right of
petition or free speech” (§ 425.16, subd. (b)(1)), nor is it a “written
or oral statement or writing” made in connection with litigation
(id., subd. (e)(1), (2)).
8
Similar circumstances were at issue in Old Republic
Construction Program Group v. The Boccardo Law Firm, Inc.
(2014) 230 Cal.App.4th 859 (Old Republic). There, an underlying
action was settled; the settlement funds were placed in a client
trust account with a stipulation that allocation would be
determined later. After the funds were withdrawn, a dispute
arose about how the settlement proceeds should have been
distributed. One of the creditors, Old Republic, sued a law firm
and its partner regarding the distribution. The defendants filed
an anti-SLAPP motion, which the trial court partially granted.
The Court of Appeal in Old Republic observed that the
“defendants assert at one point in their brief that the targeted
causes of action ‘all aris[e] from [the] stipulation’ which resulted
in the deposit of settlement funds in defendants’ trust account. If
true this would bring these causes of action within the statute’s
protection, because the stipulation was a ‘writing made in
connection with an issue under consideration or review by a ...
judicial body.’ (§ 425.16, subd. (e)(2).)” (Old Republic, supra, 230
Cal.App.4th at p. 867.) However, Old Republic’s claims did not
arise from the stipulation: “Old Republic’s injury arose from
defendants’ withdrawal of the funds that were the subject matter
of the stipulation. That is the conduct by which defendants
allegedly breached the contract between the parties, violated a
duty of care, and injured Old Republic. It is that conduct from
which these causes of action must be held to arise. For purposes
of the SLAPP statute, the stipulation must be viewed as
incidental.” (Id. at p. 869.) The court further held that the
withdrawal of funds itself was not communicative, so it was not
protected activity under section 425.16. (Id. at p. 870.)
9
Allor argues that this case is more like O&C Creditors
Group, LLC v. Stephens & Stephens XII, LLC (2019) 42
Cal.App.5th 546 (O&C Creditors). In that case, an insurance
dispute ended in a settlement; an action for attorney fees then
ensued. One creditor alleged it had a lien on the litigation
recovery; it cross-complained against the insurance company and
its law firm “for settling the insurance coverage lawsuit in
derogation of the alleged attorney lien.” (O&C Creditors, supra,
42 Cal.App.5th at p. 556.) The cross-defendants filed an anti-
SLAPP motion, which the trial court granted on the grounds that
“the settlement of civil lawsuits is petitioning activity protected
by the anti-SLAPP statute.” (Id. at p. 559.)
The Court of Appeal affirmed. The cross-complainant
argued that “there is no protection for the ‘wrongful
disbursement’ of settlement funds” (O&C Creditors, supra, 42
Cal.App.5th at p. 567), but the court rejected that argument. The
court noted that “settlements are protected conduct under the
anti-SLAPP statute.” (Ibid.) The settlement the parties
negotiated did not account for the attorney fee lien, thus the
parties’ protected settlement negotiations were the basis for the
lien not being paid. The court stated that the “protected
settlement activity—both the[ ] entry into an agreement that
disclaims the existence of any attorney lien . . . and the
effectuation of that settlement agreement by paying only [other
creditors] in derogation of the alleged attorney lien—underlie the
elements” of the cross-complaint. (Id. at p. 568.) Thus, the
“conduct in disbursing the settlement proceeds—i.e., carrying out
the terms of the settlement agreement—cannot be neatly cleaved
from the indisputably protected activity of negotiating and
agreeing to the settlement itself.” (Id. at p. 569.)
10
Allor argues, “As in O&C Creditors, settlement and
judgment proceeds here would also not exist in the absence of
protected settlement and litigation activity.” This argument
misinterprets the holding of O&C Creditors. The issue in O&C
Creditors was not that the payment choices were litigation-
related, but rather that those choices were made during
settlement negotiations, which were protected communications.
Here, by contrast, there are no allegations or evidence that Pro
Legal was not paid as a result of communications during
litigation, as opposed to private discussions between Allor and
Alonso after the litigation ended. Thus, this case is more like Old
Republic than O&C Creditors, because the sole issue is how the
judgment funds were distributed. The failure to pay Pro Legal’s
liens—the act upon which Pro Legal’s claims are based—is not
protected activity.
Allor points out that Pro Legal’s complaint also includes
allegations about communication between Allor and Alonso,
which resulted in Pro Legal not getting paid. For example, in the
causes of action for intentional interference with contractual
relations and with prospective economic advantage, Pro Legal
alleged that Allor “encourage[ed] Alonso to not satisfy the liens”
and “induced” Alonso to breach his contract with Pro Legal. In
the cause of action for conspiracy, Pro Legal alleged that Allor
and Alonso “agreed to a common plan or design to avoid or
disrupt Pro Legals’ lien rights.” Allor argues that in light of
these allegations, his “protected legal advice regarding Pro
Legal’s alleged claims on litigation proceeds is the crux of the
alleged wrongful conduct by Allor.” He asserts that wrongful
distribution of the judgment is “not separate from the alleged
11
conspiracy, but is the required act in furtherance of the
conspiracy.”
However, even assuming that Allor and Alonso’s post-
litigation discussions constitute protected activity, “a claim is not
subject to a motion to strike simply because it contests an action
or decision that was arrived at following speech or petitioning
activity . . . . Rather, 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.” (Park, supra, 2 Cal.5th at p. 1060.)
Here, Allor’s communication with Alonso itself is not the basis for
any liability. Although communication between Allor and Alonso
may have preceded the distribution of the judgment funds, that is
not the activity that is the basis for Pro Legal’s claims. “ When
liability is asserted for the target act of a conspiracy, the
preliminary speech or petitioning activity is simply evidence of
the defendant’s liability, not ‘the wrong complained of.’” (Spencer
v. Mowat (2020) 46 Cal.App.5th 1024, 1037; see also id. at p. 1036
[conspiracy is a doctrine of vicarious liability, “not a cause of
action itself”].) None of Pro Legal’s claims for recovery focuses on
Allor’s communication with Alonso, as opposed to Pro Legal’s
liens not being paid.
Any communication between Allor and Alonso that led to
that result is incidental Pro Legal’s claims. “Allegations of
protected activity that merely provide context, without
supporting a claim for recovery, cannot be stricken under the
anti-SLAPP statute.” (Baral v. Schnitt (2016) 1 Cal.5th 376,
394.) Allor therefore has not met his burden to show that Pro
12
Legal’s claims arose from protected activity, and thus has not met
his first-step burden of the anti-SLAPP analysis.4
DISPOSITION
The order denying Allor’s special motion to strike is
affirmed. Pro Legal is entitled to recover its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COGLIATI, J.*
We concur:
ZUKIN, P. J.
4 In the trial court Allor submitted a declaration with his
reply, and the trial court sustained Pro Legal’s objection to it on
the grounds that new evidence is generally not permitted with a
reply. On appeal, Allor argues the trial court erred because Pro
Legal had seen the declaration before, so it was not “new.” Allor
does not discuss the substance of the declaration, nor how the
court’s exclusion of it prejudiced him. An appellant may not
“‘simply stat[e] a bare assertion that [a ruling] is erroneous and
leav[e] it to the appellate court to figure out why; it is not the
appellate court’s role to construct theories or arguments’” for the
appellant. (Lee v. Kim (2019) 41 Cal.App.5th 705, 721.) Allor’s
claim of evidentiary error is therefore forfeited.
* Judge of the Santa Cruz Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
13
MORI, J.
14