Filed 6/22/26 DiMarzo v. Clark CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE

LEEANN DIMARZO, as Trustee, etc. B347529

Plaintiff and Respondent, (Los Angeles
County
v. Super. Ct. No.
24STPB04661)
WILLIAM CLARK,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, David J. Cowan, Judge. Affirmed.
Nemecek & Cole and Kenny C. Brooks for Defendant and
Appellant.
McDermott Will & Schulte, Robert Barton and CJ
Armstrong for Plaintiff and Respondent.
________________________
 Appellant attorney William Clark appeals from an order
denying a special motion to strike under Code of Civil Procedure
section 425.15 (the anti-SLAPP statute)1 in favor of respondent
Leeann DiMarzo, as trustee of the Ralph Harboe Trust dated
July 24, 2006 (the trust), in this elder abuse action. On appeal,
Clark contends his alleged participation in obtaining a trust
amendment was protected prelitigation activity under the anti-
SLAPP statute. We conclude the trust amendment in this case is
not protected prelitigation activity under the anti-SLAPP statute,
because the conduct at issue was not intimately intertwined with,
and preparatory to, the filing of judicial proceedings. Therefore,
we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Facts for Purposes of Anti-SLAPP Proceeding

Harboe was born on June 4, 1942, and owns a home in
Hermosa Beach. In approximately 1987, he began dating Linda
Joanne Olsson. Both were divorced. Harboe has one daughter
from his prior marriage, DiMarzo, who lives in New York.
Approximately a year after Harboe and Olsson began dating,
Olsson moved into the Hermosa Beach house with Harboe, where
she has resided with him for nearly 40 years.

1 SLAPP is an acronym for “strategic lawsuits against
public participation.” (Equilon Enterprises v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53, 57, fn. 1.) All further statutory
references are to the Code of Civil Procedure unless otherwise
stated.

2
 On July 24, 2006, Harboe established the trust, of which he
was the trustee. Olsson was named as successor trustee,
DiMarzo was named as the second successor trustee, and
Harboe’s sister was listed as the third successor trustee. Upon
Harboe’s death, all personal property was to be distributed by the
trustee under a general power of appointment, or if no power of
appointment was exercised, to DiMarzo. From the remainder of
the trust estate, exclusive of the personal residence at the time of
Harboe’s death, 20 percent was to be distributed to Olsson. The
trustee was directed to permit Olsson to reside in any real
property owned by the trust which constituted Harboe’s principal
residence at the time of his death. Olsson was to pay ordinary
maintenance, utilities, and minor repairs for the property, while
the trust would pay major repairs in excess of $1,000, property
taxes, and insurance. The remainder of the estate was to be
distributed to DiMarzo.
That same day, Harboe executed a durable power of
attorney designating Olsson as his attorney-in-fact. Olsson, as
Harboe’s agent, has the authority to make gifts of property owned
by Harboe during his lifetime and in his place, whether the
property is in his name or the name of his revocable trust. As his
attorney in fact, he granted her full power and authority to do
every act necessary in and about the premises as fully as he
might do personally, ratifying all that his attorney did lawfully or
caused to be done. The power of attorney was effective
immediately and indefinitely, although Harboe could revoke it,
and it would not be affected by Harboe’s subsequent incapacity.
In addition, Harboe executed an advanced health care
directive naming Olsson as his agent to make health care

3
decisions for him, his sister as the first alternate agent, and
DiMarzo as his second alternate agent.
Harboe did not, however, take steps to transfer the
Hermosa Beach home into the trust.
In September 2021, prior to undergoing spinal surgery,
Harboe wrote a brief holographic will, which he had witnessed by
two neighbors who were longtime friends of the couple. The will
states that Harboe leaves all his worldly goods to his daughter,
DiMarzo, including investment accounts, checking and saving
accounts, and the Hermosa Beach house. He added, “My
sweetheart Linda J. Olsson is invited to live there for the
remainder of her life.”
In February 2022, Harboe fell while leaving a physical
therapy appointment and broke his femur. After nearly a year in
a rehabilitation facility, he returned to the Hermosa Beach home
in March 2023. The home was not equipped to meet Harboe’s
needs, and he needed more care than Olsson could provide, so
within days, he moved to The Canterbury Retirement
Community in Rancho Palos Verdes. At the time of Harboe’s
admission, the staff at the facility were told that Harboe had
cognitive impairment related to his surgery, but he had not been
diagnosed with dementia. Harboe was approximately 80 years
old.
On August 11, 2023, Olsson had prolapse surgery. She was
approximately 81 years old. She returned to the Hermosa Beach
home on August 17, 2023.
On August 24, 2023, DiMarzo sent an email to Olsson’s
estate planning attorney, Robert Valentine, stating that she was
in California visiting Olsson and Harboe. She had received
information from Olsson about Harboe’s cognitive decline.

4
DiMarzo sought Valentine’s help to process any paperwork
necessary for DiMarzo to take over Harboe’s affairs.
On August 27, 2023, DiMarzo took Harboe to meet with his
neurologist, Dr. Samra Vazirian. The following day, Vazirian
provided a note stating that Harboe “needs assistance with
managing finances and all instrumental activities of daily living
due to his cognitive impairment.”
Attorney Valentine prepared a document for Olsson to
decline to act as successor trustee, which Olsson signed on
August 29, 2023. In the same document, DiMarzo consented to
serve as successor trustee and agreed to the terms of the trust.
On October 31, 2023, DiMarzo, as attorney-in-fact for
Harboe, transferred ownership of the Hermosa Beach property to
the trust. Harboe had approximately $2 million in liquid assets
available for his care, in addition to the real property.
DiMarzo, either personally or through her attorney William
Barton, communicated to some extent that she planned to sell the
Hermosa Beach property. Olsson retained Clark, who is a
litigation attorney. Olsson provided Clark with a copy of the
trust, the document appointing Olsson as Harboe’s attorney-in-
fact, and other documents.
After a phone conversation, DiMarzo’s attorney sent an
email to Clark on April 8, 2024, with several demands and
proposals. The email stated the trust allowed for Olsson to live in
the Hermosa Beach home only if it was Harboe’s primary
residence at his death. Because Harboe had been moved to a care
facility, the Hermosa Beach home was no longer his residence.
DiMarzo’s attorney believed Harboe understood that if he was
moved to a care facility, his home would be sold to pay for his
care. DiMarzo proposed, as an accommodation to Olsson, that

5
Olsson could lease the home for $18,000 per month, which
DiMarzo characterized as below fair market rent and
significantly less than the trust would receive on the proceeds if
the house were sold. Olsson would be required to pay all of the
expenses for the home. DiMarzo also demanded that Olsson
provide a set of keys to the home or she would make
arrangements for a locksmith. In addition, DiMarzo intended to
pick up Harboe’s personal property from the house, because the
personal property belonged to the trust.
Clark contacted estate planning attorney Tara
McGuinness. He provided McGuinness with the estate planning
documents. He said DiMarzo was determined to sell the
Hermosa Beach house immediately, even though Harboe had
sufficient liquid funds to pay for his care for years and Harboe’s
estate plan appeared to demonstrate an intent to allow Olsson to
live at the Hermosa Beach house. He asked her opinion of the
trust document.
McGuinness thought the trust was poorly drafted and
created an ambiguity as to whether Olsson was given a life estate
in the Hermosa Beach home if Harboe died while staying at
Canterbury. In her view, it appeared the settlor’s intention was
for Olsson to be able to live in the residence for life, but the
drafter had not anticipated a temporary or permanent stay in an
assisted living facility. McGuinness believed the best way to
clarify the ambiguity was through an amendment to the trust,
and she believed Harboe had the power to amend the trust to
provide clarity.
McGuinness prepared an amendment to the trust. She did
not speak to Harboe before drafting the amendment. In an email
to Clark dated April 9, 2024, McGuinness criticized an ambiguity

6
in a trust provision that allows the settlor the right to amend
related to the trustee’s acceptance. She was paid for her work by
Clark or Olsson, but did not think to enter into a third-party
payor agreement.
The purported trust amendment acknowledged that
DiMarzo was the duly appointed trustee, because Olsson had
declined to act. Olsson was now able and willing to so act. The
amendment noted the trust provision allowing the settlor to
amend the trust while he was living and competent. The settlor
purported to exercise his right to amend the trust by naming
Olsson as the first successor trustee, Harboe’s sister the second
successor, and a professional fiduciary as the third successor.
The amendment also stated that Olsson was permitted to reside
at the Hermosa Beach home during Harboe’s lifetime and at the
time of his death. In addition, Olsson could use all the personal
property located in the residence during her lifetime. The
amendment gave Olsson use of the real and personal property
during her lifetime. Olsson continued to be responsible for the
payment of ordinary expenses of maintenance, utilities, and
minor repairs. The trust would pay majors repairs that cost in
excess of $1,000, property taxes, and insurance.
Attorney McGuinness spoke to Harboe for the first time
when she met with him at the Canterbury on April 12, 2024, for
approximately 30 minutes. Harboe executed a retainer
agreement and the trust amendment, which McGuinness
notarized. A few days later, on April 15, 2024, McGuinness spoke
to Olsson for the first time when Olsson met McGuinness to
execute the amendment in her purported capacity as trustee.

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B. Allegations of Petition to Invalidate Trust
Amendment and Disinherit Olsson

On April 22, 2024, DiMarzo, in her capacity as trustee, filed
a petition against Olsson for an order declaring the trust
amendment invalid and disinheriting Olsson by deeming her to
have predeceased Harboe because of her actions. In addition, the
petition alleged causes of action for financial elder abuse, return
of trust property, and damages of $10 million. Olsson took
financial advantage of Harboe for her own benefit by causing him
to execute the trust amendment and wrongfully retaining trust
property. Doe respondents “assisted, conspired, or colluded” with
Olsson to commit the alleged acts. Each Doe respondent was
acting for the remaining respondents as an agent, employee, or
similar capacity, and each respondent gave consent, ratified, and
authorized the acts of the remaining respondents. Each
respondent was sued for their actions individually, as well as on
theories of respondeat superior and conspiracy.
On June 17, 2024, attorney Stefanie Cutler was appointed
guardian ad litem for Harboe.
On November 15, 2024, DiMarzo filed an amendment
substituting attorney Clark as Doe defendant 1. Another
amendment substituted attorney McGuinness for Doe
defendant 2.
On November 21, 2024, attorney Richard Petty, on behalf of
DiMarzo in her capacity as trustee, filed an action to eject Olsson
and recover possession of the Hermosa Beach home. The
complaint stated the reasonable value of the rents and profits
from the property was in excess of $4,000 per month.

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C. Anti-SLAPP Motion

On January 10, 2025, attorney Clark filed an anti-SLAPP
motion. He asserted that the petition was based on statements
made in connection with or in preparation for litigation, including
revising an estate plan in connection with anticipated litigation
activity. Clark is a litigation attorney, and to the extent he
assisted in obtaining the amendment, his actions were in
anticipation of litigation and protected under the anti-SLAPP
statute. He asserted that DiMarzo cannot show a probability of
prevailing for several reasons, including that his actions were
protected by the litigation privilege. DiMarzo also failed to
obtain permission of the court to pursue a cause of action against
Clark for civil conspiracy with his own client, as required under
Civil Code section 1714.10, subdivision (a). Due process
precludes the action, because Olsson has not waived the attorney-
client privilege for Clark to demonstrate his lack of culpability.
Moreover, DiMarzo had unclean hands. And he argued DiMarzo
cannot show a probability of prevailing on her claim for elder
abuse by Clark or assisted by Clark.
Attorney Clark filed his own declaration in support of the
anti-SLAPP motion. He provided a document appointing Olsson
as attorney-in-fact, which was the only such document that he
was aware of. In discovery, he had requested any document
showing DiMarzo to be Harboe’s attorney-in-fact, but DiMarzo
objected to the request and did not provide documentation. He
has never met or communicated with Harboe, and he has no
personal knowledge of Harboe’s testamentary capacity at the
time that the trust amendment was executed. Because Olsson

9
has not waived the attorney-client privilege, Clark is unable to
reveal privileged communications in defense of DiMarzo’s claims.
In Olsson’s declaration, she stated that she understood
Harboe’s move to the Canterbury in 2023 to be temporary. He
would return to the Hermosa Beach home when his condition
improved or he entered hospice care. Harboe had always told
Olsson that she could live in the Hermosa Beach home for the
rest of her life, and Olsson had seen estate planning documents
that Harboe executed stating she could live in the Hermosa
Beach house for the rest of her life.
DiMarzo showed Vizarian’s letter to Olsson on August 29,
2023, while DiMarzo knew Olsson was recovering from surgery
and health issues. DiMarzo said Olsson was now the trustee and
personally responsible for all of Harboe’s financial affairs.
DiMarzo offered to handle everything, but said Olsson would first
need to decline appointment as trustee, allowing DiMarzo to
accept appointment as the successor. When Olsson agreed to
decline the appointment, she did not know DiMarzo intended to
evict her and sell the Hermosa Beach house.
After Olsson signed the document declining to act as
trustee, DiMarzo began taking the position that Olsson was no
longer allowed to reside in the Hermosa Beach home. Olsson was
not willing to vacate the home or pay rent, as DiMarzo
demanded. Based on DiMarzo’s statements, Olsson believed
DiMarzo was going to file a lawsuit to remove Olsson from the
house, so she retained litigation attorney Clark.
Around April 15, 2024, at attorney McGuinness’s request,
Olsson signed the trust amendment as the purported trustee.

10
 Olsson has made structural improvements to the Hermosa
Beach home to accommodate Harboe’s full-time return, with 24-
hour care, at the home.
Olsson has not waived the attorney-client privilege between
herself and attorney Clark, nor does she intend to waive the
privilege.
Clark also provided the guardian ad litem Cutler’s report,
dated July 4, 2024. According to a nurse at the Canterbury,
Harboe has dementia and aphasia. In interviewing Harboe,
Cutler found that he recognized Olsson, referring to her as “my
wife.” He did not know McGuinness, was not aware of signing a
trust amendment, and was unable to tell Cutler if he had any
children. He was more comfortable with the idea of Olsson being
in charge of his finances than DiMarzo. At the end of the
meeting, he appeared physically sad and upset; he expressed that
he did not want Olsson and DiMarzo to be fighting over him.
Cutler spoke with McGuinness. McGuinness explained
that she discussed the amendment with Harboe, he appeared to
understand and wanted Olsson to be in charge of his finances and
live in the residence. McGuinness did not discuss with Harboe
that by confirming Olsson could live in the Hermosa Beach home
for her lifetime, it may be financially detrimental to him. Cutler
asked what would happen if Harboe ran out of liquid assets to
pay for his care at the Canterbury. McGuinness hoped Olsson
would provide financial assistance, but there was nothing in
writing to ensure Olsson would financially support Harboe. They
discussed that the amendment could prevent Harboe from selling
his interest in the property. McGuinness did not believe the
amendment changed the trust, but rather was a clarification.
McGuinness was aware of Harboe’s cognitive impairments and

11
dementia diagnosis, but said the physician’s determination did
not indicate that Harboe lacked testamentary capacity, simply
that he lacked the ability to manage his finances.
Cutler noted in her report that Olsson’s power of attorney
allowed her to make gifts of assets held in the trust, but opined
that the authority appeared to be a power of gifting, not a power
of amendment. Based on her interview with Harboe and her
review of the documents, she doubted Harboe had the
testamentary capacity to execute the trust amendment, and even
if he did have testamentary capacity, he likely executed the trust
amendment under mistake belief or undue influence. Cutler
observed that the real issue in the case was the meaning of the
trust provision, which would remain even if the trust amendment
was set aside, and could be resolved through a petition for
instructions.
Clark also submitted Cutler’s second report. She had
interviewed Harboe again with Olsson present. He did not
recognize Cutler. She explained her position and he apologized
for not recognizing her. He correctly identified Olsson in the
room with them. Asked if he had any opinions on who should be
managing his affairs, he promptly responded that he wanted
Olsson to manage his finances, and if she needed help, an
attorney could assist her. He also wanted Olsson to be in charge
of his medical decisions. He reiterated this preference when
Olsson left the room as well.
In Cutler’s assessment, it was doubtful that Harboe had
the requisite legal capacity to understand the consequences of the
trust amendment. Harboe was consistent, however, that he
wished Olsson to be in charge of his finances. She had been
unable to ascertain Harboe’s intent when he executed the trust in

12
2006 as to whether he intended Olsson’s life estate to expire if he
was in an assisted living facility and unable to return to his
“primary residence.”
Cutler recommended an independent interim trustee be
appointed pending the outcome of the litigation. In addition, she
recommended the court make an interim order that the trust
assets may not be used to fund the litigation, as Harboe was clear
that he does not want Olsson and DiMarzo to fight over his
welfare and he wants Olsson to be in charge.

D. Opposition to Anti-SLAPP Motion

DiMarzo, in her capacity as trustee, filed an opposition to
the anti-SLAPP motion. She argued the alleged conduct was not
protected conduct because it was illegal, criminal, and financial
elder abuse. In addition, the conduct was not in anticipation of
litigation. Even if the conduct were protected, DiMarzo asserted
that she could establish a probability of prevailing based on
Clark’s actions. Moreover, the litigation privilege should not
extend to protect the conduct at issue. The attorney-client
privilege was inapplicable if the services were sought to enable a
plan to commit a crime or fraud. DiMarzo did not have to comply
with Civil Code section 1714.10, because the petition also alleged
he was liable for aiding and abetting, which is distinct from
liability for civil conspiracy. She argued that she did not have
unclean hands because she properly transferred the Hermosa
Beach property to the trust under the power of attorney that
Harboe granted.
DiMarzo submitted her own declaration in support of the
opposition. She first noticed Harboe’s cognitive difficulties in

13
2019. In the summer of 2023, Olsson told DiMarzo that Harboe’s
cognitive decline had progressed such that he was unable to
manage his finances, and specifically, an account in the trust was
going to incur a fee if not addressed. DiMarzo could not resolve
the issue, because the account was in the trust. Olsson was not
interested in managing Harboe’s finances or being trustee. She
suggested DiMarzo should be trustee because DiMarzo was
already assisting Harboe through the power of attorney. Olsson
referred DiMarzo to her estate planning attorney, Valentine, to
effectuate a change of trustee. DiMarzo obtained a letter from
the neurologist and made an appointment with the estate
planner for Olsson and herself.
At the appointment, they discussed Harboe’s inability to
manage his own affairs. Attorney Valentine explained the
process and the paperwork necessary to make DiMarzo the
successor trustee. Since August 29, 2023, DiMarzo has managed
Harboe’s finances as trustee and through the power of attorney.
On April 8, 2024, through her attorney, DiMarzo asked
Olsson to enter into a lease agreement to defray the costs of
Harboe’s care and as an accommodation to Olsson. DiMarzo did
not expect to engage in litigation with Olsson, because under the
terms of the trust, Olsson was only permitted to reside at the
property if the residence was owned by the trust and Harboe’s
primary residence at the time of his death, so she expected
Olsson would agree to rent the home for $18,000 per month.
Instead of receiving a response about the lease agreement,
DiMarzo received the purported trust amendment seeking to
remove DiMarzo as trustee and give Olsson the present right to
live at the Hermosa Beach property and enjoy Harboe’s personal
belongings in his residence. DiMarzo did not consent to the

14
amendment, and she has not resigned from her role as trustee,
nor has she been removed.
DiMarzo also submitted a durable power of attorney
executed by Harboe on July 24, 2006, which designates DiMarzo
as his attorney-in-fact. The form is substantially similar to the
document designating Olsson as Harboe’s attorney-in-fact.
DiMarzo submitted attorney McGuinness’s deposition
testimony, in which she stated that she considered herself to
have been engaged to represent Harboe at the time that he
signed the amendment.
DiMarzo submitted a declaration from attorney Valentine.
At all times during the August 29, 2023 meeting, Olsson and
DiMarzo expressed complete accord regarding Harboe’s condition,
Olsson’s stated unwillingness to serve as trustee, and DiMarzo’s
agreement to become the successor trustee. Valentine later
discovered the Hermosa Beach home had not been placed in the
trust and discussed the issue with DiMarzo. Valentine prepared
a trust transfer deed for DiMarzo to execute on Harboe’s behalf
based on her power of attorney.

E. Reply

Clark filed a reply. He argued his conduct in consulting
with an estate planning attorney was to improve Olsson’s
position with respect to anticipated litigation. His conduct was
not criminal as a matter of law, and DiMarzo had not cited any
provision of the Penal Code to support her claim that the conduct
was criminal. The conduct was protected by the litigation
privilege. DiMarzo had not made the required prima facie case
that Olsson sought Clark’s services with the intent to commit a

15
crime, which was required to find there was no attorney-client
privilege. Civil Code section 1714.10 plainly required approval to
file a civil conspiracy cause of action, as DiMarzo had. DiMarzo
had unclean hands, because she engaged in activity as trustee,
which was contrary to the settlor’s intent, in order to benefit
herself individually. DiMarzo also could not show Clark
committed elder abuse.

F. Trial Court Ruling

After a hearing, on June 16, 2025, the trial court issued an
order denying the anti-SLAPP motion. The court found the
conduct was not “criminal,” such that it would be unprotected as
a matter of law, and the description was unnecessarily
inflammatory. However, the conduct was not protected activity,
as a trust amendment was not part of the litigation process, even
if the purpose was to alter the parties’ respective rights to the
property and increase Olsson’s leverage in litigation. In addition,
the court found there was some potential for DiMarzo to prevail
on the merits of the claim for financial elder abuse against Clark.
Clark filed a timely notice of appeal from the order denying
the anti-SLAPP motion.2

2 DiMarzo’s motion to supplement the appellate record with
a copy of a check, filed with this appellate court on December 15,
2026, is denied, as the evidence was not before the trial court and
not relevant to the resolution of the appeal.

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 DISCUSSION

A. Standard of Review

“[T]he anti-SLAPP statute is designed to protect
defendants from meritless lawsuits that might chill the exercise
of their rights to speak and petition on matters of public concern.”
(Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883–
884 (Wilson).) To accomplish this purpose, the statute authorizes
a special motion to strike a claim 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 . . .
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).)
Courts apply a two-step analysis to evaluate anti-SLAPP
motions. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th
995, 1011 (Bonni).) In the first step, the court determines
whether the plaintiff’s claims arise from protected activity. (Id.
at p. 1009.) “The defendant’s burden is to identify what acts each
challenged claim rests on and to show how those acts are
protected under a statutorily defined category of protected
activity. [Citation.]” (Id. at p. 1009; Terry v. Davis Community
Church (2005) 131 Cal.App.4th 1534, 1544 (Terry).)
A count, as pled in the complaint, may contain allegations
of both protected and unprotected activity, loosely referred to as a
“mixed cause of action,” but an anti-SLAPP motion can reach a
claim based on protected activity regardless of how the pleading

17
is organized. (Baral v. Schnitt (2016) 1 Cal.5th 376, 382 & 392
(Baral).) “When relief is sought based on allegations of both
protected and unprotected activity, the unprotected activity is
disregarded at this stage.” (Id. at p. 396.)
If the complaint seeks relief based on allegations arising
from protected activity, the court turns to the second step of the
analysis. (Baral, supra, 1 Cal.5th at p. 396.) In the second step,
“the burden shifts to the plaintiff to demonstrate that each
challenged claim based on protected activity is legally sufficient
and factually substantiated.” (Ibid.) “[A] plaintiff seeking to
demonstrate the merit of the claim ‘may not rely solely on its
complaint, even if verified; instead, its proof must be made upon
competent admissible evidence.’ [Citations.]” (Sweetwater Union
High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931,
940.) The court, without weighing evidence or resolving
evidentiary conflicts, determines “whether the plaintiff's showing,
if accepted by the trier of fact, would be sufficient to sustain a
favorable judgment.” (Baral, supra, 1 Cal.5th at p. 396.) The
plaintiff must also show a probability of prevailing on defenses.
(See Flatley v. Mauro (2006) 39 Cal.4th 299, 323 [plaintiff must
overcome litigation privilege to demonstrate probability of
prevailing]; Bergstein v. Stroock & Stroock & Lavan LLP (2015)
236 Cal.App.4th 793, 813 [plaintiffs’ claims precluded by
litigation privilege and statute of limitations].)
“ ‘[C]laims with the requisite minimal merit may proceed.’
[Citation.]” (Baral, supra, 1 Cal.5th at p. 385.) “If not, the claim
is stricken. Allegations of protected activity supporting the
stricken claim are eliminated from the complaint, unless they
also support a distinct claim on which the plaintiff has shown a
probability of prevailing.” (Id. at p. 396.)

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 On appeal, we review an order granting or denying an anti-
SLAPP motion de novo. (Park v. Board of Trustees of California
State University (2017) 2 Cal.5th 1057, 1067 (Park).) “We
exercise independent judgment in determining whether, based on
our own review of the record, the challenged claims arise from
protected activity.” (Ibid.) Considering the pleadings and the
affidavits concerning the facts, we accept the plaintiffs’
submissions as true “and consider only whether any contrary
evidence from the defendant establishes its entitlement to prevail
as a matter of law. [Citation.]” (Ibid.)

B. Financial Elder Abuse Generally

The statutory definition of financial abuse of an elder
includes when a person or entity “[t]akes, secretes, appropriates,
obtains, or retains, or assists in taking, secreting, appropriating,
obtaining, or retaining, real or personal property of an elder or
dependent adult by undue influence, as defined in Section
15610.70.” (Welf. & Inst. Code, § 15610.30, subd. (a)(3).) For
purposes of the elder abuse protection statutes, undue influence
is defined as “excessive persuasion that causes another person to
act or refrain from acting by overcoming that person’s free will
and results in inequity.” (Welf. & Inst. Code, § 15610.70, subd.
(a).) To determine whether undue influence was exercised, the
statute provides four factors the court must consider: (1) the
victim’s vulnerability; (2) the influencer’s apparent authority; (3)
the influencer’s actions or tactics; and (4) the equity of the result.
(Welf. & Inst. Code, § 15610.70, subd. (a)(1)–(4).)

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C. Trust Amendment was not Protected Prelitigation
Activity

The basis for the financial elder abuse claim in this case is
Clark’s alleged assistance in unduly influencing Harboe’s
execution of a trust amendment. Clark contends the alleged
communications are protected prelitigation activity under section
425.16, subdivision (e)(2), because the communications were
made in anticipation of litigation. We conclude the
communications forming the basis of the claim do not qualify as
protected prelitigation statements under the anti-SLAPP statute.

1. Statements in Connection with Issue Under
Consideration

Section 425.16, subdivision (e)(2), protects “any written or
oral statement or writing made in connection with an issue under
consideration or review by a . . . judicial body.” Protection is not
limited to statements made after a legal proceeding commences;
it includes communications made in anticipation of litigation.
(Bassi v. Bassi (2024) 101 Cal.App.5th 1080, 1096 (Bassi);
Digerati Holdings, LLC v. Young Money Entertainment, LLC
(2011) 194 Cal.App.4th 873, 886–887 (Digerati).)
“[C]ommunications that are intimately intertwined with,
and preparatory to, the filing of judicial proceedings qualify as
petitioning activity for the purpose of the anti-SLAPP statute.”
(Cabral v. Martins (2009) 177 Cal.App.4th 471, 482 (Cabral); see
People ex rel. Fire Ins. Exchange v. Anapol (2012) 211
Cal.App.4th 809, 825 [filing insurance claim was protected
prerequisite to litigation]; Briggs v. Eden Council for Hope &

20
Opportunity (1999) 19 Cal.4th 1106, 1109–1115 [counseling
tenant in anticipation of litigation]; Seltzer v. Barnes (2010) 182
Cal.App.4th 953, 963–964 [settlement communications]; Salma v.
Capon (2008) 161 Cal.App.4th 1275, 1285 [contract rescission
notice given as prerequisite to litigation]; Birkner v. Lam (2007)
156 Cal.App.4th 275, 282 [notice terminating tenancy was
protected prerequisite to unlawful detainer action].)
However, “[i]t is well settled that not all litigation activity
is protected activity.” (Drell v. Cohen (2014) 232 Cal.App.4th 24,
30.) “[P]rotection is not accorded to statements ‘having any
connection, however remote, with an official proceeding.’ (Paul v.
Friedman (2002) 95 Cal.App.4th 853, 866 (Paul).) Rather, ‘[t]he
statements or writings in question must occur in connection with
“an issue under consideration or review” in the proceeding’ or the
anticipated action. (Ibid.)” (Bassi, supra, 101 Cal.App.5th at
p. 1096.)
A statement or writing is “made ‘in connection with’ ”
litigation under section 425.16, subdivision (e)(2), “if it relates to
the substantive issues in the litigation and is directed to persons
having some interest in the litigation.” (Neville v. Chudacoff
(2008) 160 Cal.App.4th 1255, 1266 (Neville).) “Drawing guidance
from the scope of the litigation privilege set forth in Civil Code
section 47, subdivision (b), courts have articulated the standard
to reflect the reasonable relevancy requirement incorporated in
the litigation privilege. ([Citation.]) ‘To be protected by the
litigation privilege, a communication must be “in furtherance of
the objects of the litigation.” ’ (Action Apartment Assn., Inc. v.
City of Santa Monica (2007) 41 Cal.4th 1232, 1251 (Action
Apartment).)” (Bassi, supra, 101 Cal.App.5th at p. 1097, fn.
omitted.)

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 “Put differently, the statement must ‘ “be connected with,
or have some logical relation to, the action, i.e., . . . not be
extraneous to the action.” ’ (Action Apartment, supra, 41 Cal.4th
at p. 1251; see Neville, supra, 160 Cal.App.4th at p. 1266.) ‘A
prelitigation communication is privileged only when it relates to
litigation that is contemplated in good faith and under serious
consideration.’ (Action Apartment, at p. 1251.) ‘ “Good faith” in
this context refers to a good faith intention to file a lawsuit rather
than a good faith belief in the truth of the communication.’
(Digerati, supra, 194 Cal.App.4th at p. 887.) Courts have
concluded on this basis that ‘a prelitigation statement falls
within clause (1) or (2) of section 425.16, subdivision (e) if the
statement “ ‘concern[s] the subject of the dispute’ and is made ‘in
anticipation of litigation “contemplated in good faith and under
serious consideration.” ’ ” ’ (Digerati, at p. 887; accord, Neville, at
p. 1268.)” (Bassi, supra, 101 Cal.App.5th at p. 1097.)

2. Relevant Case Law

In Gaynor v. Bulen (2018) 19 Cal.App.5th 864, 869
(Gaynor), certain trust beneficiaries filed a petition in probate
court for breach of fiduciary duty against the cotrustees and
appellant Bulan. The petition alleged a plan by the cotrustees
and Bulan to modify the trustee succession provisions to benefit
the senior generation beneficiaries, including withdrawing and
using trust funds to file and defend probate petitions in pursuit of
their plan. The Gaynor court found the litigation activity was
evidence of Bulan’s alleged breach of loyalty, but the claims
against him did not arise from his litigation activity. A trustee’s
breach of loyalty, including the misuse of trust funds to fund

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litigation to implement the plan to change the trustee succession,
was not protected activity. (Id. at p. 870.) In other words, the
claim for breach of fiduciary duty did not arise from protected
petitioning activity. (Id. at p. 881.)
In White v. Davis (2023) 87 Cal.App.5th 270, 277−278
(White), Thomas Tedesco resigned as trustee of his own trust,
resulting in his biological daughters serving as successor
trustees, and he signed an amendment making the trust
irrevocable and unmodifiable without their written consent.
Tedesco’s second wife and his step-daughters attempted to have
Tedesco amend his estate plan and remove his biological
daughters as trustees, even as trustee Laura White filed a
petition for a conservatorship of her father. Tedesco executed a
purported trust amendment disinheriting his biological
daughters in favor of his second wife, or if she did not survive
him, his step-daughters, without providing notice to or obtaining
the approval of his conservator, the probate court, or the trustees
of the trust. (Id. at p. 282.) White, in her capacity as trustee,
filed elder abuse restraining order applications against the
second wife, the step-daughters, and several non-appointed
attorneys. (Ibid.) The applications alleged the defendants
participated in actions to unduly influence Tedesco to change his
estate plan for their benefit. (Id. at p. 288.) Most of the
defendants filed anti-SLAPP motions on the ground that the
applications were based on their protected petitioning and speech
activities. (Id. at p. 283.) The trial court found no protected
activity was involved, and the appellate court agreed. (Id. at
p. 284 & 286.
The White court found the applications arose from the
defendants’ conduct in isolating and confusing Tedesco to effect a

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change in his estate plan, not their protected speech or
petitioning activity. (Id. at p. 289.) Although the defendants’
various litigation activities were protected petitioning conduct
under the anti-SLAPP statute, their plans to unduly influence
Tedesco and change his estate plan were not protected activities.
(Id. at p. 290.) The litigation activities were merely evidence of
the nefarious acts to control Tedesco through isolation, confusion,
and mental suffering designed to overcome his free will. (Ibid.)
The elder abuse restraining order applications did not arise out of
defendants’ protected activity, but rather from their actions to
unduly influence Tedesco concerning his estate plan. (Ibid.)

3. Application

In this case, the claims against attorney Clark arise from
his alleged participation in unduly influencing Harboe to execute
a trust amendment. Clark contends his actions were protected
conduct because they were taken to clarify and improve his client
Olsson’s position in anticipation of litigation. We conclude
Clark’s alleged conduct to obtain a trust amendment is too
attenuated from the anticipated litigation to be considered a
communication in connection with an issue under consideration
by a judicial body.
The conduct underlying the financial elder abuse claim,
namely, to obtain Harboe’s execution of a trust amendment, was
not an act in furtherance of the right of petition. (See Moore v.
Shaw (2004) 116 Cal.App.4th 182, 195−196 [drafting agreement
allowing premature trust termination was not conduct in
furtherance of right of petition].) Litigation was arguably
anticipated to determine issues such as the proper interpretation

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of the trust, Harboe’s original intent, and Olsson’s property
rights. Rather than obtain, for example, a statement or
declaration from Harboe about the issues to be litigated, Clark
allegedly obtained Harboe’s execution of a trust amendment to
change the terms of the trust. The trust amendment was not a
prerequisite to litigation or a communication about the existing
issues to be litigated, and it had an independent effect, apart
from any litigation. The trial court properly found the conduct
alleged was not prelitigation activity protected under the anti-
SLAPP statute.
Clark contends that the anti-SLAPP statute protects his
conduct because as a lawyer and a litigator, his actions were
intended to improve Olsson’s position in an unlawful detainer
action that Clark believed was inevitable. Clark relies on Cabral,
supra, 177 Cal.App.4th 471. In Cabral, appellant Tammy Cabral
obtained a judgment against her former husband for unpaid child
support. (Id. at p. 475.) His mother, with the help of attorney
Edward Martins, revised her estate plan to disinherit him. (Id.
at p. 476.) After the mother’s death, Martins initiated probate
proceedings to implement her estate plan. (Id. at p. 476.)
Several attorneys defended the ex-husband and his siblings in
judicial proceedings initiated by Cabral against them. (Id. at
pp. 476−477.) Cabral brought a new action against her ex-
husband, his siblings, and the attorneys. (Ibid.) She alleged the
attorneys violated child support evasion statutes by assisting in
the transfer or concealment of assets to avoid paying child
support. (Id. at p. 475.) The attorneys filed anti-SLAPP motions,
which the trial court granted.
On appeal, the Cabral court found that filing a probate
action and defending clients in litigation clearly constituted

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protected petitioning activity under the anti-SLAPP statute.
(Cabral, supra, 177 Cal.App.4th at pp. 479−480.) The court
concluded attorney Martins’ revision of the estate plan was also
protected activity because communications intimately
intertwined with, and preparatory to filing judicial proceedings
qualify as petitioning activity. (Id. at p. 482.) The Cabral court
reasoned that the estate plan revisions had no effect until they
were implemented through the probate proceedings, so the
revisions were also protected conduct. (Id. at p. 483.) The court
also found, however, that even if the revisions were not protected
conduct, they were incidental to the subsequent protected
activity. (Ibid.)
Cabral is distinguishable. First, the case was decided
several years before the California Supreme Court addressed
mixed causes of action in Baral, supra, and explained that an
anti-SLAPP motion may be used to strike particular claims of
protected activity even without defeating a pleaded “cause of
action” or “primary right.” (Baral, supra, 1 Cal.5th at
pp. 381−382, 384-396.) Second, the Cabral court found the claim
for evasion of a child support obligation did not arise until the
will was submitted for probate, and therefore, the conduct was
intimately intertwined with the right to petition by filing probate
action. In other words, the conduct at issue was a necessary
prerequisite to invoking the machinery of litigation. In the
present case, the claim for elder abuse was based on obtaining
Harboe’s signature on the trust amendment. No action was
required to be filed with the court for an elder abuse claim to
arise from the conduct. Third, the Cabral court concluded the
revisions to the estate plan were incidental to the protected
petitioning activity that was the basis of the claim. In the

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present case, the alleged conduct is the basis of the elder abuse
claim, not merely incidental allegations providing context.
The trial court properly denied the anti-SLAPP motion
after finding the alleged conduct was not protected prelitigation
activity.

DISPOSITION

The order is affirmed. Respondent Leeann DiMarzo, as
trustee of the Ralph Harboe Trust dated July 24, 2006, is
awarded her costs on appeal.
NOT TO BE PUBLISHED.

MOOR, J.

WE CONCUR:

BAKER, Acting P. J.

KIM (D.), J.

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