Filed 7/31/26 Shia v. Thomas CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
LILY SHIA, B344456
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 23VECV05138)
KENDRA THOMAS,
Defendant and Respondent.
APPEALS from an order and a judgment of the Superior Court of
Los Angeles County, Virginia Keeny and Wendy L. Wilcox, Judges.
Appeal from order dismissed; judgment affirmed.
Lily Shia, in pro. per., for Plaintiff and Appellant.
Miller Waxler, Randall A. Miller and Jeanette Chu for Defendant
and Respondent.
____________________________________
Appellant Lily Shia sued respondent Kendra Thomas over actions
Thomas took as court-appointed counsel for Shia’s minor child.
Thomas moved to quash service of summons; later, she moved to strike
Shia’s complaint as a Strategic Lawsuit Against Public Participation
(SLAPP). (Code Civ. Proc., §§ 418.10, 425.16.)1 The trial court granted
both motions.
Thomas submitted to the court’s jurisdiction when she moved to
strike the complaint. Because Thomas made a general appearance, we
dismiss as moot Shia’s appeal from the order quashing service. On de
novo review of the anti-SLAPP motion, we conclude (1) Shia’s
complaint arises from First Amendment petitioning activity, and (2)
Shia cannot prevail on the merits. We affirm the judgment.
FACTS AND PROCEDURAL HISTORY
The Underlying Family Court Case
Shia’s husband Gunther filed for dissolution of marriage in 2015.
In 2019, the court appointed Thomas to represent the couple’s child,
I.S, in a “high conflict parenting situation;” gather evidence bearing on
I.S.’s best interests; conduct interviews; and determine if mental health
evaluations were warranted. Thomas had an attorney-client
relationship with I.S. and did not allow Shia or Gunther to participate
in interviews to avoid pressuring the child.
In 2021, the court gave Gunther sole legal custody of I.S.
Gunther obtained primary physical custody of I.S. in 2022; the order
was affirmed in In re Marriage of Shia (July 30, 2024, B324260
[nonpub. opn.].)
In 2023, Thomas closed her law office to become a commissioner
of the Los Angeles County Superior Court. Shia and Gunther
stipulated to relieve Thomas as minor’s counsel. The court approved
the stipulation.
1 Undesignated statutory references are to the Code of Civil
Procedure.
2
Shia Sues Thomas
Acting in propria persona, Shia filed suit against Thomas. She
alleged that Thomas’s negligence in the custody dispute caused her
emotional distress. Thomas intentionally harmed Shia by, among other
things, “Ignoring my pregnancy,” “Lying about UCLA doctor,” “Not
interviewing [I.S.] with me”; and “Lying about move-away.” At a case
management conference, the court observed that Thomas was not
served with process.
Appearing specially, Thomas moved to quash Shia’s failed
attempts at service. The court found service was not properly
effectuated and granted Thomas’s motion. During the hearing,
Thomas’s attorney agreed to accept service of the summons and
complaint on Thomas’s behalf.
Thomas Moves to Strike the Complaint
Thomas filed a special motion to strike. She argued (1) the
conduct alleged in the complaint arose from petitioning activity, and (2)
Shia cannot prevail because Thomas’s actions on behalf of I.S. are
protected by the litigation privilege.
In opposition to Thomas’s motion, Shia asserted that her
complaint did not arise from protected activity but from Thomas’s
“breach of professional duties in her role as minor’s counsel.” Shia
wrote that Thomas “made multiple false and unverified assertions in
open court” in the underlying family court case.
Shia believed gross negligence and ethical violations are not
protected petitioning activity, and that she has standing to sue as I.S.’s
parent. Without offering a declaration or admissible evidence, Shia
asserted that she would prevail because Thomas’s false statements
influenced the court’s decision to change custody, which distressed Shia
and disrupted her relationship with I.S. At the hearing on the motion,
Shia said her lawsuit is based on “gross negligence and professional
misconduct and breach of ethical duty.”
The Trial Court’s Ruling
The court found Thomas showed her activities and
communications arose in a matter before a judicial body. Next, it found
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Shia cannot prevail because Thomas’s activities are protected by the
litigation privilege. Shia offered no evidence to support her claims.
The court granted the motion and awarded attorney fees. Judgment
was entered for Thomas on March 12, 2025.
DISCUSSION
Appeal From the Order Quashing Service
Shia appealed the order granting the motion to quash service.
(§ 904.1, subd. (a)(3).) We asked the parties to brief whether the appeal
is moot. (Gov. Code, § 68081.) A reviewing court may raise the
question of mootness sua sponte. (Building a Better Redondo, Inc. v.
City of Redondo Beach (2012) 203 Cal.App.4th 852, 865.) An appeal
cannot be maintained if the issue raised has “ ‘become moot by
subsequent acts or events.’ ” (Id. at p. 866.)
In supplemental briefs, the parties agree that the order quashing
service is moot. Thomas concedes she made a general appearance.
(See Li v. Yan (2016) 247 Cal.App.4th 56, 65 [general appearance in an
action waives a claimed jurisdictional defect].) The trial court decided
Shia’s lawsuit on the merits. Because the case reached final judgment,
we dismiss as moot Shia’s appeal from the order quashing service.
(Consolidated Vultee Aircraft Corp. v. United Automobile, Aircraft &
Agricultural Implement Workers of America Local 904 (1946) 27 Cal.2d
859, 862–863.)
Appeal From the Order Striking the Complaint
1. Overview of Section 425.16
The anti-SLAPP law curbs “lawsuits brought primarily to chill
the valid exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances.” (§ 425.16, subd. (a).) Courts
must strike causes of action arising from a defendant’s exercise of First
Amendment rights unless plaintiff shows a probability of prevailing on
the claim. (Id., subd. (b)(1).) The law is construed “broadly” (id., subd.
(a)) as “a procedure for weeding out, at an early stage, meritless claims
arising from protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376,
384 (Baral).) An order granting an anti-SLAPP motion is appealable.
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(§ 425.16, subd. (i).) Review is de novo. (Monster Energy Co. v.
Schechter (2019) 7 Cal.5th 781, 788.)
A two-step analysis is done. The defendant must first show
plaintiff’s claims arise from First Amendment activity. If constitutional
rights are affected, the burden shifts to the plaintiff to show a
probability of prevailing on the merits. Claims are stricken if plaintiff’s
showing is insufficient to sustain a favorable judgment. (Baral, supra,
1 Cal.5th at p. 396; Olson v. Doe (2022) 12 Cal.5th 669, 678–679.)
Courts consider “the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.”
(§ 425.16, subd. (b)(2).)
2. First Amendment Petitioning Activity
The first prong of the SLAPP analysis focuses on “the defendant’s
activity that gives rise to his or her asserted liability” (Navellier v.
Sletten (2002) 29 Cal.4th 82, 92) and “whether the cause of action is
based on the defendant’s protected speech or petitioning activity.” (Id.
at p. 89.) This includes “any written or oral statement” in a judicial
proceeding or in connection with an issue under consideration or review
by a judicial body, and “any other conduct in furtherance of the exercise
of the constitutional right of petition.” (§ 425.16, subd. (e)(1), (2), (4).)
Shia does not deny that conduct alleged in the complaint arose
from the family court proceeding. She nonetheless argues that her
complaint is “Not Wholly Based on Protected Activity,” reasoning,
“gross negligence in handling a vulnerable client’s affairs, failure to
implement basic safety practices, racial slurs, or mishandling
property—does not arise from protected petitioning activity even if the
misconduct occurs in a litigation context.”
Shia is mistaken. “Under the plain language of section 425.16,
subdivisions (e)(1) and (2), . . . all communicative acts performed by
attorneys as part of their representation of a client in a judicial
proceeding or other petitioning context are per se protected as
petitioning activity by the anti-SLAPP statute.” (Cabral v. Martins
(2009) 177 Cal.App.4th 471, 479–480; Finton Construction, Inc. v.
Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 210 (Finton).) The
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statute encompasses litigation pursued “with a malicious motive and
without probable cause.” (Chavez v. Mendoza (2001) 94 Cal.App.4th
1083, 1088.)
Shia’s opposition to the motion states that her claims arise from
Thomas’s “breach of professional duties in her role as minor’s counsel”
and “Ethical Violations.” Section 425.16 protects attorneys
“representing clients in litigation.” (Rusheen v. Cohen (2006) 37
Cal.4th 1048, 1056 (Rusheen).) “ ‘[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.’ ”
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 285.)
Shia’s lawsuit falls squarely within section 425.16, which applies
to “a nonclient who alleges causes of action against someone else’s
lawyer based on that lawyer’s representation.” (Thayer v. Kabateck
Brown Kellner LLP (2012) 207 Cal.App.4th 141, 158.) Shia did not
show Thomas’s conduct was “illegal as a matter of law.” (Flatley v.
Mauro (2006) 39 Cal.4th 299, 317.) Thomas’s actions and
communications while representing I.S. are petitioning activity
connected to a judicial proceeding.
3. Probability of Prevailing
Shia must show a probability of prevailing to defeat the motion to
strike. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th
53, 67.) This step of the analysis requires admissible evidence; plaintiff
cannot rely on “allegations in the complaint or conclusory statements.”
(Finton, supra, 238 Cal.App.4th at p. 213.) The defendant prevails by
showing it can defeat plaintiff’s claims as a matter of law. (Wilson v.
Cable News Network, Inc. (2019) 7 Cal.5th 871, 891.)
Though “minimal merit” is needed to survive an anti-SLAPP
motion (Navellier v. Sletten, supra, 29 Cal.4th at p. 89), Shia cannot
make a minimal merit showing here.
First, Shia failed to substantiate her claims. She did not submit
a declaration documenting misconduct unrelated to the underlying
custody dispute or harm she suffered. She offers only argument, not
admissible evidence.
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Second, Shia cannot prevail because she lacks standing to sue.
The family court appointed Thomas to represent I.S. Thomas owed no
independent legal duty to Shia, who was not a third-party beneficiary
of Thomas’s legal services. (See De Meo v. Cooley LLP (2025) 115
Cal.App.5th 17, 38–39 [a nonclient may sue as the intended beneficiary
of legal work an attorney was retained to perform].)
Third, the litigation privilege bars Shia’s claims. (Civ. Code,
§ 47.) It applies to communications made (1) in judicial proceedings;
(2) by litigants or other participants; (3) to achieve litigation objectives;
(4) with “some connection or logical relation to the action.” (Silberg v.
Anderson (1990) 50 Cal.3d 205, 212.)
Civil Code section 47 affords “free access to the courts without
fear of being harassed subsequently by derivative tort actions”;
encourages “zealous advocacy”; gives “finality to judgments”; avoids
“unending litigation”; “is absolute and applies regardless of malice”;
and “ ‘has been given broad application.’ ” (Rusheen, supra, 37 Cal.4th
at p. 1063.) The privilege “may present a substantive defense a
plaintiff must overcome to demonstrate a probability of prevailing.”
(Flatley v. Mauro, supra, 39 Cal.4th at p. 323.)
In opposition to the motion to strike, Shia claimed Thomas made
false and unverified assertions in the custody dispute. False assertions
made in court are privileged. (Pollock v. University of Southern
California (2003) 112 Cal.App.4th 1416, 1430–1431 [a false declaration
“is exactly the sort of communication the privilege is designed to
protect”].) “[T]he litigation privilege extends to fraudulent statements,
even when made to a court, if they were made in furtherance of
litigation” because “ ‘ “[t]he ‘furtherance’ requirement was never
intended as a test of a participant’s motives, morals, ethics or
intent.” ’ ” (Herterich v. Peltner (2018) 20 Cal.App.5th 1132, 1141
[lawsuit for fraud against an attorney, arising from prior litigation];
Silberg v. Anderson, supra, 50 Cal.3d at p. 220.)
At base, Shia is disappointed with the family court custody
decision; however, she cannot sue Thomas for her role as I.S.’s attorney.
Shia cannot prevail because the litigation privilege is an absolute
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defense to her claims. (Bergstein v. Stroock & Stroock & Lavan LLP
(2015) 236 Cal.App.4th 793, 814 [if the litigation privilege precludes
liability, a plaintiff cannot show a probability of prevailing].)
4. Denial of a Continuance
The anti-SLAPP statute allows a court to order specified
discovery upon a plaintiff’s written request. (§ 425.16, subd. (g).) “If
the plaintiff makes a timely and proper showing in response to the
motion to strike, that a defendant or witness possesses evidence needed
by plaintiff to establish a prima facie case, the plaintiff must be given
the reasonable opportunity to obtain that evidence through discovery
before the motion to strike is adjudicated.” (Lafayette Morehouse, Inc.
v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 868.) The court
may “continu[e] the hearing to a later date so that the discovery it
authorized can be completed where a reasonable exercise of judicial
discretion dictates the necessity therefor.” (Ibid.)
Shia admittedly did not request discovery under section 425.16,
subdivision (g). Instead, she sought a continuance, saying she had to
appear at another trial; was affected by wildfires that caused power
outages and harmed her child’s health; and needed time to address
personal and legal matters and prepare for the hearing.
During the hearing on the motion to strike, Shia belatedly sought
discovery to prove Thomas’s communications and filings in family court
“directly affected our judge’s decision on custody.” The request was
untimely. Even if Shia had timely requested discovery, the information
she sought is either barred by the attorney-client privilege or falls
within the litigation privilege.
5. Attorney Fees
A defendant who prevails on a motion to strike “shall be entitled
to recover” attorney fees. (§ 425.16, subd. (c)(1).) Shia does not
challenge the amount of the trial court’s attorney fee award to Thomas.
The fee award stands because we uphold the judgment upon which it is
based. As the prevailing party on appeal, Thomas is entitled to a
reasonable amount of attorney fees for services rendered on appeal.
(Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499–1500; Wilkerson v.
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Sullivan (2002) 99 Cal.App.4th 443, 447–448; California Rules of
Court, rule 3.1702(c).) Recovery is limited to time spent researching
and writing the portion of the brief addressing the section 425.16
motion, not the motion to quash.
DISPOSITION
The appeal from the order quashing service is dismissed as moot.
The judgment entered pursuant to Code of Civil Procedure section
425.16 is affirmed. Respondent is entitled to recover attorney fees and
costs as the prevailing party on appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
GOORVITCH, J.
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