Filed 7/31/26 Realtek Semiconductor Corp. v. Winston & Strawn CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
REALTEK SEMICONDUCTOR B347209
CORP. et al.,
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. 23STCV21994)
v.
WINSTON & STRAWN LLP et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Virginia Keeny, Judge. Affirmed in part and
reversed in part.
Halpern May Ybarra Gelberg, Joseph J. Ybarra and Abigail
E. Marion for Defendants and Appellants.
Sall Spencer Callas & Krueger, Robert K. Sall, Lara A.S.
Callas and Michael A. Sall for Plaintiffs and Respondents.
________________________
Defendants Winston & Strawn LLP (Winston) and one of
its attorneys David Paul Enzminger undertook representation of
Advanced Micro Devices, Inc. (AMD) in a patent dispute adverse
to their former client Realtek Semiconductor Corp. (Realtek) and
(depending on whom you believe) then-current or former client
Steven Baik (together, Plaintiffs). Plaintiffs responded by suing
Winston and Enzminger (together, Defendants) for breach of
fiduciary duty, legal malpractice, and breach of contract.
Defendants filed an anti-SLAPP1 motion to strike the
claims against them, arguing the injury-causing conduct arose
from protected activity and that Plaintiffs could not demonstrate
a probability of prevailing on the merits. The trial court denied
the motion, finding that the claims at issue did not arise from
protected litigation activity but from alleged breaches of
Defendants’ duties of confidentiality and loyalty.
Defendants now appeal, arguing that claims by a client
against its attorney for subsequent adverse litigation conduct on
behalf of another party is protected activity under the SLAPP
statute. Focusing as we must on the wrong complained of, we
largely agree with the trial court; the bulk of the injury-causing
conduct alleged in the operative complaint is not protected speech
or petitioning activity but Winston and Enzminger’s alleged
abandonment of their professional responsibilities to Plaintiffs.
1 SLAPP is an acronym for “strategic lawsuit against public
participation.” (Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 57.) For clarity, we also refer to a “SLAPP”
or “anti-SLAPP” motion as “a special motion to strike”—the
language used in the statute (Code Civ. Proc., § 425.16, subd.
(b)(1)). Unspecified statutory references are to the Code of Civil
Procedure.
2
But we also conclude that allegations relating to Defendants
successfully moving to exclude Baik as a witness in the patent
proceedings arise from protected activity. We therefore reverse
that portion of the order denying the anti-SLAPP motion and
remand for the trial court to decide whether Defendants
demonstrated a probability of prevailing on this subset of
allegations. We otherwise affirm.
BACKGROUND
A. Relevant Allegations in the Operative Complaint
In March 2024, Plaintiffs filed the operative second
amended complaint (SAC), alleging claims that Defendants
breached their fiduciary duty to Realtek (first cause of action)
and to Baik (second cause of action), and committed legal
malpractice while representing Baik (third cause of action).
Realtek further asserted that Winston breached their
engagement contract (fourth cause of action).
The SAC alleges as follows. Realtek is a computer
hardware and software company. Baik is an attorney for
Realtek.
Beginning in 2014, Defendants represented Realtek in
proceedings before the International Trade Commission (ITC). In
2019, Defendants also represented Realtek and its subsidiary in
patent litigation. That year, Realtek and Winston negotiated an
engagement agreement to establish a “long term relationship”
between the two. In the agreement, which is attached as an
exhibit to the SAC, Realtek waived conflicts of interest (including
future conflicts) arising from Winston’s representation of clients
adverse to Realtek in a matter “which is not the same or
substantially related to this matter” as long as none of Winston’s
3
personnel who had worked on Realtek matters or otherwise had
access to confidential information represented the adverse party.
On August 19, 2022, Realtek filed a complaint for patent
infringement against AMD in the United States District Court
for the Northern District of California. (Realtek Semiconductor
Corp. v. Advanced Micro Devices, Inc. (N.D.Cal., No. 5:22-cv-
04769-JSW).) On September 14, 2022, Defendants appeared on
behalf of AMD in that action. Baik, on behalf of Realtek, objected
to Defendants’ representation of AMD.
In December 2022, Realtek “initiated an ITC [i]nvestigation
against AMD” (the ITC Proceedings) relating to AMD’s
infringement of patents covering technology similar to the
technology at issue in the 2014 matter in which Defendants
represented Realtek. Defendants represented AMD in the ITC
Proceedings.
In February and April 2023, Defendants represented Baik
during his depositions in a separate, unrelated litigation (the
Krafton Litigation) in his personal capacity and as a corporate
designee of Krafton. The Krafton Litigation settled in or about
November 2023.
“While concurrently representing Baik personally in the
Krafton Litigation, . . . Defendants attacked Baik’s credibility and
sought, on behalf of their other client AMD, to exclude Baik as a
witness for Realtek in the . . . ITC [Proceedings].”
Realtek and Baik sought to disqualify Defendants from
representing AMD. The administrative law judge (ALJ) in the
ITC Proceedings considered both Plaintiffs’ motion to disqualify
and Defendants’ motion to exclude Baik as a witness in the
proceeding. The ALJ precluded Baik from testifying, which
Plaintiffs allege “on information and belief” was “in part . . . to
4
avoid alleged prejudice to AMD that would arise if . . .
Defendants were not permitted to continue representing AMD
while Baik would be a witness.”
The first cause of action for breach of fiduciary duty alleges
that Defendants breached their duties of loyalty and
confidentiality to Realtek by representing AMD in a matter in
which AMD was adverse to Realtek and where the subject matter
at issue was substantially related to Defendants’ prior
representation of Realtek. Defendants further breached the duty
not to disclose any information acquired by virtue of their prior
representation. Realtek alleges that had Defendants not
breached these duties, Realtek would have obtained a better
outcome in the ITC Proceedings, including avoiding legal fees
expended in seeking to disqualify Defendants and in resisting
AMD’s motion to strike Baik as a witness, as well as being able to
use Baik as a witness. Realtek sought to recuperate the legal
fees it expended in bringing and opposing these motions as well
as disgorgement of the fees Defendants received from AMD.
The second cause of action for breach of fiduciary duty
alleges that Defendants breached their duties of loyalty and
confidentiality to Baik by concurrently representing him and
AMD.2 The SAC alleges that, on information and belief,
Defendants also breached the duty not to use any information
acquired by virtue of their fiduciary relationship with Baik. The
SAC alleges that in seeking to exclude Baik as a witness,
Defendants “assailed his credibility,” betrayed him, “sought
2 Plaintiffs do not assert the subject matter of the ITC
Proceedings was substantially related to the Krafton Litigation in
which Defendants represented Baik.
5
judicial assistance to prejudice their own client Baik,” and
prevented him from fulfilling his obligations to Realtek. As a
result, Baik suffered damages, including “extreme emotional” and
physical distress. Baik sought damages, disgorgement of fees
Defendants earned in representing AMD, and punitive damages.
The third cause of action alleges Defendants committed
legal malpractice as to Baik by, among other things, “taking
positions adverse to Baik and performing services below the
standard of care and under undisclosed conflicts of interest to
which there was never an informed consent of the client.” The
third cause of action also includes the claim that Defendants
allegedly “failed to properly advise Baik in the Krafton Litigation,
and otherwise failed to perform to the standard of care in
representing Baik.”
The fourth cause of action alleges that Winston breached
its written agreement with Realtek in representing AMD over
Realtek’s objection.
B. The Anti-SLAPP Motion and the Court’s Ruling
1. Defendants’ Motion
Defendants filed a special motion to strike the SAC’s four
causes of action and specific allegations within the SAC. They
argued each cause of action arose from Defendants’ advocacy on
behalf of another party, and, thus, involved petitioning activity.
In their briefing, Defendants denied they still represented
Baik at the time of the ITC Proceedings. Defendants also
described the circumstances giving rise to their motion to exclude
Baik as a witness from the ITC Proceedings and submitted
evidence in support thereof. That evidence showed the following:
Defendants’ primary argument in seeking to strike Baik was that
as outside counsel for Realtek in the ITC Proceedings, Baik had
6
had access to confidential business information (CBI) of Realtek’s
competitors, including AMD. Under the operative protective
order in the ITC Proceedings, CBI produced in discovery could be
reviewed only by outside counsel. Thus, permitting Baik to
testify as a fact witness with this knowledge would be contrary to
the protective order and prejudicial to AMD. Defendants also
argued that American Bar Association Model Rules advised
against an attorney-advocate also serving as a fact witness in the
same proceeding.
In response to the motion to exclude Baik as a witness,
Plaintiffs argued that Defendants should be disqualified.
Plaintiffs argued Defendants’ motion to exclude Baik as a witness
in the ITC Proceedings while they concurrently represented him
in the Krafton Litigation underscored the impropriety of
Defendants’ adverse representation of AMD.
After hearing argument, the ALJ granted the motion to
exclude Baik as a witness for two reasons. First, Baik would
“wear[] two hats” and “blur the lines” between advocate and
witness, forcing the ALJ to rule on privilege and ethical issues
and causing undue confusion in the proceedings. Second, “the
biggest problem” that the ALJ was “very concerned about,” was
Baik testifying as a fact witness after having had access to CBI in
contravention to the protective order. “I don’t want to have to
report to the General Counsel’s Office here at the ITC that I have
had a protective order violation which I could have easily
prevented.” The ALJ also found the likelihood of prejudice to
AMD from Baik testifying was high, but the prejudice to Realtek
of Baik not testifying was low as Realtek had other witnesses
who could testify to the same issues.
7
The ALJ then heard argument as to whether Defendants
should be disqualified from representing AMD. The ALJ ruled
Defendants’ representation of Baik in the Krafton Litigation did
not warrant disqualification because “I barred Mr. Baik from
testifying. And, yes, that has prejudiced Realtek, but it hasn’t
prejudiced them unduly or in any way that I think undermines
the integrity of this case because, I mean, to be blunt, he never
should have been offered up as a witness in the first place.” The
ALJ also stated that Baik was not a party to the proceedings.
The ALJ further found that Defendants’ prior representation of
Realtek was not substantially related to the subject matter of the
ITC Proceedings and denied the motion for disqualification.
2. Plaintiffs’ Opposition
In their opposition to the section 425.16 motion to strike,
Plaintiffs argued none of the alleged wrongful conduct in the SAC
arose from protected activity. With respect to the issue of
excluding Baik as a witness from the ITC Proceedings, Plaintiffs
argued the ALJ concluded that Defendants’ representation of
Baik in the Krafton Litigation did not warrant disqualification
because the ALJ’s ruling barring Baik from testifying meant that
the conflict would not taint the investigation.
3. The Trial Court’s Ruling
The trial court denied Defendants’ special motion to strike.
It stated, “Where, as here, a plaintiff’s claims arise from breach of
duties of confidentiality and loyalty, the fact that the vehicle for
that breach includes litigation activity on behalf of another client
does not render an attorney’s alleged misconduct subject to anti-
SLAPP protection per se, as it might for an entirely unrelated
third party suing under the same circumstances.” The court
concluded that “Plaintiffs’ claims arise from bona fide allegations
8
that Defendants breached their duties, not simply from
Defendants’ conduct undertaken on behalf of AMD.” Because the
court’s first prong finding required it to deny the anti-SLAPP
motion, the court did not consider the second anti-SLAPP prong.
DISCUSSION
A. General Legal Principles and Standard of Review
The Legislature enacted section 425.16 “[t]o combat
lawsuits designed to chill the exercise of free speech and petition
rights.” (Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1060 (Park).) Thus, “[a] cause of action
against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under
the United States Constitution or the California Constitution in
connection with a public issue shall be subject to a special motion
to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will
prevail on the claim.” (§ 425.16, subd. (b)(1).)
When considering whether to strike a claim, courts
undertake a two-prong analysis. “First, the defendant must
establish that the challenged claim arises from activity protected
by section 425.16.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)
“In deciding whether the initial ‘arising from’ requirement is met,
a court considers ‘the pleadings, and supporting and opposing
affidavits stating the facts upon which the liability or defense is
based.’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89, citing
§ 425.16, subd. (b).)
In Park, supra, 2 Cal.5th 1057, our Supreme Court set
forth how to determine whether a defendant has made a prima
facie showing of speech or petitioning rights for purposes of
section 425.16: “A claim arises from protected activity when that
9
activity underlies or forms the basis for the claim. [Citations.]
Critically, ‘the defendant’s act underlying the plaintiff’s cause of
action must itself have been an act in furtherance of the right of
petition or free speech.’ [Citations.] . . . [T]he focus is on
determining what ‘the defendant’s activity [is] that gives rise to
his or her asserted liability—and whether that activity
constitutes protected speech or petitioning.’ [Citation.] . . . In
short, in ruling on an anti-SLAPP motion, courts should consider
the elements of the challenged claim and what actions by the
defendant supply those elements and consequently form the basis
for liability.” (Id. at pp. 1062-1063.) Courts should be “attuned to
and . . . respect the distinction between activities that form the
basis for a claim and those that merely lead to the liability-
creating activity or provide evidentiary support for the claim.”
(Id. at p. 1064; see Baral v. Schnitt, supra, 1 Cal.5th at p. 394
[“Assertions that are ‘merely incidental[,]’ . . . ‘collateral[,]’ ” or
“provide context, without supporting a claim for recovery, cannot
be stricken under the anti-SLAPP statute”].) “[A] claim may be
struck only if the speech or petitioning activity itself is the wrong
complained of, and not just evidence of liability or a step leading
to some different act for which liability is asserted.” (Park, supra,
2 Cal.5th at p. 1060.)
“If the defendant makes the required showing, the burden
shifts to the plaintiff to demonstrate the merit of the claim by
establishing a probability of success.” (Baral v. Schnitt, supra, 1
Cal.5th at p. 384.) At this second stage, the court “ ‘ “accepts the
plaintiff’s evidence as true, and evaluates the defendant’s
showing only to determine if it defeats the plaintiff’s claim as a
matter of law.” ’ ” (Wilson v. Cable News Network, Inc. (2019) 7
Cal.5th 871, 891.)
10
We review de novo the trial court’s grant or denial of a
special motion to strike under the anti-SLAPP statute. (Park,
supra, 2 Cal.5th at p. 1067.)
B. Arising from Protected Activity
1. Prong One Analytical Framework
Section 425.16, subdivision (e) identifies four categories of
acts that are “ ‘in furtherance of’ ” a defendant’s free speech or
petition rights. Defendants do not specify which categories of
section 425.16, subdivision (e) they believe are at issue here, but
subdivisions (e)(1) and (e)(2) define statements or writings made
before a judicial proceeding or in connection with an issue under
consideration by a judicial body to be protected acts.
“The anti-SLAPP protection for petitioning activities
applies not only to the filing of lawsuits, but extends to conduct
that relates to such litigation, including statements made in
connection with or in preparation of litigation.” (Kolar v.
Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532,
1537.) Further, “the SLAPP statute protects lawyers sued for
litigation-related speech and activity.” (Thayer v. Kabateck
Brown Kellner LLP (2012) 207 Cal.App.4th 141, 154.) But “[n]ot
all attorney conduct in connection with litigation, or in the course
of representing clients, is protected by section 425.16.”
(California Back Specialists Medical Group v. Rand (2008) 160
Cal.App.4th 1032, 1037.)
In Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th
624, plaintiffs sued their former attorneys for malpractice due to
the attorneys’ failure while representing plaintiffs to comply with
a discovery statute and court orders. (Id. at pp. 627-628.) The
attorneys filed an anti-SLAPP motion, which the trial court
denied. The appellate court affirmed, holding the alleged
11
“garden-variety attorney malpractice” did not arise from the
defendants’ right to petition, but from their negligent failure to
protect their clients’ interests in the underlying action. (Id. at
pp. 627, 632.)
Similarly, clients’ claims against their former attorneys for
undertaking adverse representation in violation of ethical rules
do not arise from protected activity. In Benasra v. Mitchell
Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179, the
plaintiffs alleged their former attorneys’ representation of a rival
company with adverse interests violated the duty of loyalty. (Id.
at pp. 1182-1183.) The defendant attorneys brought an anti-
SLAPP motion, arguing that their representation of the plaintiffs’
rival was protected activity within the meaning of section 425.16.
The trial court granted the motion. (Id. at p. 1183.) The
appellate court reversed. It stated, “The breach [of the duty of
loyalty] occurs not when the attorney steps into court to
represent the new client, but when he or she abandons the old
client. . . . In other words, 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.
The breach of fiduciary duty lawsuit may follow litigation
pursued against the former client, but does not arise from it.
Evidence that confidential information was actually used against
the former client in litigation would help support damages, but is
not the basis for the claim. As [the plaintiffs] so aptly put it,
their claim is not based on ‘filing a petition for arbitration on
behalf of one client against another, but rather, for failing to
maintain loyalty to, and the confidences of, a client.’ ” (Id. at
p. 1189.)
12
Since Benasra, several other courts have held that when
clients sue their attorney for breaching duties by undertaking an
adverse representation, the wrong complained of for anti-SLAPP
purposes is not the representation of the new client, but the
abandonment of the old. (See, e.g., Wittenberg v. Bornstein (2020)
50 Cal.App.5th 303; Sprengel v. Zbylut (2015) 241 Cal.App.4th
140, 155; Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 493;
Freeman v. Schack (2007) 154 Cal.App.4th 719, 732.)
For example, in Wittenberg, attorney Yosef Peretz initially
represented a business co-owned by two principals named
Wittenberg and Bornstein. (Wittenberg v. Bornstein, supra, 50
Cal.App.5th at p. 307.) Years later, Wittenberg, through new
counsel, filed a cross-complaint in an action involving the
company, suing Bornstein in the business’s name for misconduct.
Bornstein, through attorney Peretz, filed a dismissal of the
company’s cross-complaint with prejudice. Then, in a separate
suit, Wittenberg sued Bornstein and Peretz, alleging Peretz
(1) represented clients with conflicting interests without
obtaining a waiver, (2) used the company’s confidential business
information against the company, and (3) conspired with
Wittenberg’s former attorney and Bornstein to file the dismissal
of the cross-complaint with prejudice in the earlier action. (Id. at
p. 310.)
The appellate court held the first and second categories did
not constitute protected activity. “Such causes of action arise
from Peretz’s alleged breaches of his fiduciary and professional
obligations, not from the litigation conduct, which is merely
incidental to the unprotected conduct. There is no chilling effect
on advocacy in such claims; rather, the threat of liability
encourages the attorney to act competently and loyally.”
13
(Wittenberg v. Bornstein, supra, 50 Cal.App.5th at p. 314.) On
the other hand, Peretz’s involvement in preparing and filing the
dismissal of the company’s cross-complaint was protected activity
within the meaning of prong one. (Id. at p. 315.)
2. Analysis
a. The Injury-causing Conduct
In analyzing Defendants’ claims, we do not consider only
the form or label of a cause of action. Instead, “the focus is on
determining what ‘the defendant’s activity [is] that gives rise to
his or her asserted liability—and whether that activity
constitutes protected speech or petitioning.’ ” (Park, supra, 2
Cal.5th at p. 1063.)
Defendants identify the alleged wrongful acts as (1) their
“serving as counsel to AMD in the ITC Proceeding[s],” and (2)
their “[]successful[] motion to strike Baik as a witness for Realtek
in the ITC Proceeding[s].” Defendants argue, “On their face, both
acts concern [Defendants’] litigation conduct on behalf of AMD
and, specifically, positions taken by AMD in the ITC
Proceeding[s] (through . . . its counsel) that Plaintiffs allege to
have been adverse to them.” Defendants conclude that both
alleged wrongful acts are based on their advocacy on behalf of
AMD, and thus, are litigation activities subject to the anti-
SLAPP statute.
Before considering these wrongful acts, we observe that the
SAC alleges a third category of wrongful conduct. Plaintiffs
allege, “Defendants also failed to properly advise Baik in the
Krafton Litigation, and otherwise failed to perform to the
standard of care in representing Baik.” (Italics added.) The third
cause of action for legal malpractice incorporates this allegation.
Defendants do not offer any argument why this claim, to the
14
extent it depends only on the quality of their representation of
Baik in the Krafton Litigation, arises from protected activity. It
plainly does not. (Jespersen v. Zubiate-Beauchamp, supra, 114
Cal.App.4th at p. 632.)
b. Legal Representation of AMD
Defendants contend Wittenberg v. Bornstein, supra, 50
Cal.App.5th 303 and Peregrine Funding, Inc. v. Sheppard Mullin
Richter & Hampton LLP (2005) 133 Cal.App.4th 658 (Peregrine),
support their position that their adverse representation of AMD
is protected activity.
In Peregrine, a bankruptcy trustee (asserting claims on
behalf of the company Peregrine and related entities) and
investors in a Ponzi scheme (acting on their own behalf and on
behalf of a putative class of bilked investors) sued a law firm.
They alleged the firm’s negligence and misconduct helped the
perpetrators of the scheme, including James Hillman (a principal
of Peregrine and related entities), avoid detection and
prosecution by regulators. (Peregrine, supra, 133 Cal.App.4th at
pp. 665, 668, fn. 4.) “The thrust of plaintiffs’ argument is that
[the firm] breached a duty owed to them by serving Hillman’s
needs to the detriment of coclients Peregrine and the [f]unding
[e]ntities. Investors were harmed along with these entities, [the]
plaintiffs allege, because [the firm]’s stalling and stonewalling
tactics delayed the progress of the SEC’s investigation and
lawsuit and enabled the scheme’s perpetrators to solicit—and
steal—more money from investors.” (Id. at pp. 670-671.)
Among other things, the plaintiffs complained that the firm
violated ethical rules by failing to disclose potential conflicts of
interest or obtain informed consent from all clients as to its joint
representation. (Peregrine, supra, 133 Cal.App.4th at p. 671.)
15
The entity-plaintiffs also complained the firm abandoned them by
withdrawing from the litigation and failing to return their
documents. The Court of Appeal observed that none of these
claims targeted speech or petitioning activity. (Ibid.) But the
plaintiffs also complained that the firm opposed the SEC’s efforts
to obtain restraining orders and to appoint a receiver. (Peregrine,
supra, 133 Cal.App.4th at p. 671.) The court held such acts
necessarily involved written or oral statements made in a judicial
proceeding and, thus, were protected activity. (Ibid.) Because
the causes of action included both protected and unprotected
conduct and the protected conduct was not “ ‘merely incidental’ ”
to the unprotected conduct, the court concluded that the claims
arose from protected activity. (Peregrine, at pp. 672-673.)
Peregrine went on to question Benasra, stating, “Where, as
here, a cause of action alleges the plaintiff was damaged by
specific acts of the defendant that constitute protected activity
under the statute, it defeats the letter and spirit of section 425.16
to hold it inapplicable because the liability element of the
plaintiff’s claim may be proven without reference to the protected
activity.” (Peregrine, supra, 133 Cal.App.4th at p. 674.)
Peregrine is distinguishable from the matter before us as
the class of investor plaintiffs in that case were not former or
current clients of the firm they sued.3 Cases have long taken a
3 The company’s bankruptcy trustee was also a plaintiff,
and it arguably stood in the shoes of the company which was the
law firm’s former client. The Peregrine court focused on the
claims asserted by all the plaintiffs and did not separately
analyze the bankruptcy trustee’s claims. (Peregrine, supra, 133
Cal.App.4th at pp. 670-674.) We note in this regard that
16
different approach as between plaintiffs (such as the investor
plaintiffs in Peregrine) who had no client relationship suing an
attorney for undertaking an adverse representation (e.g.,
Ramirez v. McCormack (2025) 113 Cal.App.5th 493, 495;
Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236
Cal.App.4th 793, 811), and plaintiffs who did have such a client
relationship suing their former attorney (e.g., Wittenberg v.
Bornstein, supra, 50 Cal.App.5th at p. 341; Benasra v. Mitchell
Silberberg & Knupp LLP, supra, 123 Cal.App.4th at p. 1189).
Indeed, the Peregrine court itself observed the law firm’s failure
to obtain a conflict waiver while representing clients with
adverse interests did not involve protected activity. (Peregrine,
supra, 133 Cal.App.4th at p. 671.) Defendants also ignore the
similar holding in Wittenberg that the claims based on the firm’s
representation of clients with conflicting interests without
obtaining a waiver and use of the business-client’s confidential
information did not constitute protected activity. (Wittenberg v.
Bornstein, supra, 50 Cal.App.5th at pp. 310, 314.) It is these
claims that are the most analogous to the first category of
wrongdoing Defendants identify as alleged in the SAC.
To the extent Plaintiffs’ causes of action and other
challenged allegations are based upon their former or current
counsel’s subsequent and related or concurrent adverse
representation, they do not arise from protected activity. (See
Sprengel v. Zbylut, supra, 241 Cal.App.4th at p. 155 [“ ‘the
Peregrine was decided long before the Supreme Court’s decisions
in Baral v. Schnitt, supra, 1 Cal.5th at pages 393-395 and Bonni
v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010 clarifying
that courts should analyze each act supplying a basis for relief to
determine whether each of those acts is protected.
17
“activit[ies] that give[] rise to [the defendants’] asserted
liability” ’ [citation] are undertaking a representation in which
they had an irreconcilable conflict of interest”].) “There is no
chilling effect on advocacy in such claims; rather, the threat of
liability encourages the attorney to act competently and loyally.”
(Wittenberg v. Bornstein, supra, 50 Cal.App.5th at p. 314.)
Plaintiffs’ allegations that they were damaged in the amount
they expended in legal fees seeking to disqualify Defendants in
the ITC Proceedings or that Defendants used confidential
information obtained by virtue of their attorney-client
relationships with Plaintiffs, are incidental to and serve as
evidence of the wrongful act of abandoning their clients.
c. Striking Baik as a Witness in the ITC
Proceedings
We reach a different conclusion as to Defendants’ alleged
wrongful act of seeking to exclude Baik as a witness from the ITC
Proceedings. As stated above, “A claim arises from protected
activity when that activity underlies or forms the basis for the
claim. [Citations.] Critically, ‘the defendant’s act underlying the
plaintiff’s cause of action must itself have been an act in
furtherance of the right of petition or free speech.’ [Citations.]
. . . [T]he focus is on determining what ‘the defendant’s activity
[is] that gives rise to his or her asserted liability—and whether
that activity constitutes protected speech or petitioning.’ ” (Park,
supra, 2 Cal.5th at pp. 1062-1063, italics omitted.) “[A] court
must look past how the plaintiff characterizes the defendant’s
conduct to determine, based on evidence presented, whether the
plaintiff’s claims are based on protected speech or conduct.”
(Burke, California Practice Guide: Anti-SLAPP Litigation (The
Rutter Group 2025) § 3:5; see, e.g., Navellier v. Sletten, supra, 29
18
Cal.4th at p. 89, citing § 425.16, subd. (b).) We need not give
credence to the complaint’s allegations as to a defendant’s
motivations in the face of contrary evidence. (Wilson v. Cable
News Network, Inc., supra, 7 Cal.5th at p. 887 [holding a
plaintiff’s allegations as to the defendant’s motivations, such as
whether the defendant took certain action for speech-related
reasons, cannot be dispositive of the issue and the defendant may
submit evidence as to its motives].)
For this set of allegations, the activity that forms the basis
of Plaintiffs’ claims is Defendants’ successful petitioning of the
court to exclude Baik from testifying as a witness in the ITC
Proceedings, not Defendants’ adverse representation of AMD.
Baik’s claims about the cause of his alleged injuries illustrate this
point. (See Mireskandari v. Edwards Wildman Palmer LLP
(2022) 77 Cal.App.5th 247, 265 [stating a cause of action for
breach of fiduciary duty requires a plaintiff to plead and prove
that the breach proximately caused damage].) Baik’s declaration
filed in opposition to the section 425.16 motion explains a
significant cause of his emotional distress was his inability to
help Realtek in the ITC Proceedings because he was struck as a
witness: “I was deeply embarrassed and upset by this outcome
[being excluded as a witness from the ITC Proceedings] because
it prevented me from doing my job to protect Realtek and gave
Winston and AMD an unfair advantage since I would not be
allowed to testify in opposition to . . . the opposing attorney with
whom I had negotiated the settlement agreement. . . . It was
excruciating to be excluded as a witness and not allowed to
present Realtek’s side of the negotiations. As a result of
Defendants’ conduct, which I believe were willful and calculated
to cause me harm, I have suffered severe and extreme emotional
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distress, including embarrassment, humiliation, anxiety,
sleeplessness, and other more serious issues.”
Plaintiffs argue all of Defendants’ alleged wrongful conduct
falls into the category of abandoning their clients. They attempt
to tether the motion to exclude Baik as a witness to Defendants’
adverse representation by arguing, “Ultimately, the ALJ struck
Baik as a witness to side-step the conflict issue,” and alleging
that the ALJ precluded Baik from testifying “in part . . . to avoid
alleged prejudice to AMD that would arise if . . . Defendants were
not permitted to continue representing AMD while Baik would be
a witness.”
But the record demonstrates that the adverse
representation did not drive the motivation to exclude Baik as a
witness, and that Plaintiffs’ allegations about the motion
necessarily arise from protected statements made in a judicial
proceeding. As set forth in the motion to exclude Baik and the
order granting it, the focus of the motion and the ALJ’s primary
reason for granting it was that as outside counsel, Baik had had
access to CBI and that Baik testifying as a fact witness created
significant and unnecessary risk that Baik would violate the
protective order. Neither Defendants nor the ALJ identified a
desire to avoid the conflict of interest as a reason for striking
Baik, although the ALJ acknowledged in later ruling on the
motion to disqualify that excluding Baik had mooted any concern
about a conflict of interest as to Baik. Thus, Defendants’ motion
to strike Baik was not (as Plaintiffs suggest) part and parcel of
their adverse representation claims but distinct protected
litigation activity. (Wittenberg v. Bornstein, supra, 50
Cal.App.5th at p. 315.)
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Nor can Plaintiffs avoid the anti-SLAPP statute by broadly
stating (as they have) some of the SAC’s challenged allegations to
include both protected and unprotected activity. For example,
one can read the SAC to suggest that the conduct underlying
Baik’s second cause of action for breach of fiduciary duty and his
claim for emotional distress damages therein are based on both
Defendants having undertaken a representation adverse to him
as well as Defendants seeking to exclude him as a witness from
the ITC Proceedings. Plaintiffs cannot avoid an anti-SLAPP
motion through artful pleading. (Bonni v. St. Joseph Health
System, supra, 11 Cal.5th at p. 1010.) “So long as a ‘court
determines that relief is sought based on allegations arising from
activity protected by the statute, the second step is reached’ with
respect to these claims.” (Ibid.)
We therefore reverse the trial court’s order as to the
following allegations in the SAC as they expressly or impliedly
refer to Defendants’ efforts to exclude Baik as a witness in the
ITC Proceedings, including Realtek’s and Baik’s damages flowing
therefrom: Paragraphs 1 (lines 5-18), 2, 16 (lines 22-26), 17, 35,
36, 38, 40, 41, 49-50 (in the first cause of action for breach of
fiduciary as to Realtek), 52-58 (the entirety of the second cause of
action for breach of fiduciary duty as to Baik), and 61-63 (in the
third cause of action for legal malpractice).
We decline to reach the second prong as to these claims in
the first instance, and remand for the trial court to decide the
issue in the ordinary course. (Collier v. Harris (2015) 240
Cal.App.4th 41, 58.) Because some allegations include both
protected and unprotected conduct as discussed above, on
remand, the court is to determine whether Plaintiffs can show a
probability of prevailing on the first, second, and third causes of
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action only to the extent their claims are based on Defendants
seeking to exclude Baik as a witness from the ITC Proceedings.
To the extent these causes of action and the above-identified
allegations are based on Defendants’ adverse representation
independent of the motion to exclude Baik as a witness, including
the potential use of confidential information, such allegations are
not subject to a prong two analysis for the reasons already stated.
DISPOSITION
We reverse the trial court’s order denying Defendants’
section 425.16 special motion to strike as to the following
allegations of the SAC: Paragraphs 1 (lines 5-18), 2, 16 (lines 22-
26), 17, 35, 36, 38, 40, 41, 49-50 (in the first cause of action for
breach of fiduciary as to Realtek), 52-58 (the entirety of the
second cause of action for breach of fiduciary duty as to Baik),
and 61-63 (in the third cause of action for legal malpractice). On
remand, the court is to determine whether Plaintiffs can show a
probability of prevailing on those claims to the extent they are
based on Defendants seeking to exclude Baik as a witness from
the ITC Proceedings.
We otherwise affirm. The parties are to bear their own
costs on appeal.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J. BENDIX, J.
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