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March 16, 2026 Get Citation Alerts Download PDF Add Note

Clapkin v. Levin

California Court of Appeal

• Citations: None known

• Docket Number: B340606

• Opinion

• Authorities (18)

• Cited By (0)

• Summaries (0)

• Similar Cases (21.6K)

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Combined Opinion

Filed 3/16/26
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ANDREW B. CLAPKIN et al., B340606

Cross-complainants and (Los Angeles County Super. Ct.
Appellants, No. 24STCV02330)

v.

SHANA LEVIN et al.,

Cross-defendants and
Appellants.

APPEALS from orders of the Superior Court of Los Angeles
County, Daniel M. Crowley, Judge. Affirmed; dismissed.
Ervin Cohen & Jessup, Robert M. Waxman, Jason L. Haas,
and Elliot Z. Chen for Cross-complainants and Appellants.
Greenberg Glusker Fields Claman & Machtinger,
Gregg A. Martin and Ann S. Lee; Klapach & Klapach and
Joseph S. Klapach for Cross-defendants and Appellants.

---

INTRODUCTION

In this case, one of at least nine so far between two sets of
cousins, Shana Levin and Tamara Levin (the Levins) appeal from
an order denying their motion under Code of Civil Procedure
section 425.16 to strike four causes of action in a cross-complaint
filed by Andrew Clapkin, Dina Marshall, Marci Clapkin Weiser,
and Karen Callan (the Clapkins). 1 Though the Clapkins’ cross-
complaint mentions the Levins’ conduct in some of the other
actions, the Clapkins’ causes of action arise from their
underlying dispute with the Levins, not from the Levins’
protected litigation activity. Therefore, we affirm the order
denying the Levins’ special motion to strike. We also dismiss the
Clapkins’ appeal from a nonappealable order denying their
motion for attorneys’ fees under section 425.16, subdivision (c).

FACTUAL AND PROCEDURAL BACKGROUND

A. The Levins and the Clapkins Own Shares in a
Family-run Corporation
The Levins and the Clapkins are shareholders in JosLevin
Realty Corp. of L.A. (JLR), a closely held, family corporation that
owns industrial real estate. In the early 1990s Martin Levin, the
Levins’ and Clapkins’ grandfather, owned all of JLR’s shares.
Martin gave his shares in equal portions to his three children,
Sheila Clapkin, Michael Levin, and Ronald Levin. After Ronald
transferred his shares back to Martin, Martin distributed those

1 Undesignated statutory references are to the Code of Civil
Procedure.

2
(i.e., Ronald’s) shares equally among Sheila, Michael, and
Martin’s seven grandchildren: Michael’s children (the two Levins)
and Sheila’s children (the four Clapkins and their sister Sheri
Clapkin, the one grandchild not a party to this internecine
litigation). 2 Sheila transferred her shares into a trust that
named Sheila and her husband as trustees and their five children
as successor cotrustees and beneficiaries.
Michael played an active role in JLR until 2009, when
Andrew became more involved. Andrew managed JLR’s business
operations with the help of two employees, Andrew’s husband
and Dina’s husband. In 2020 Andrew became president of JLR.
In 2009 the Levins disagreed with the Clapkins about
whether JLR should acquire new properties or, as the Levins
preferred, distribute profits to shareholders. At the 2011 annual
shareholders’ meeting the Levins announced they were
abstaining from the election and walked out. The Levins did not
attend or vote at another annual shareholders’ meeting until
2022.
In February 2022 Michael died, and Shana and Tamara
inherited his shares. At that time Sheila’s trust was JLR’s
largest shareholder, with a 37 percent interest, followed by
Shana and Tamara (each with 22.2 percent), and the five Clapkin
children (each with 3.7 percent).

2 We refer to the four cross-complainants as the Clapkins
and the five Clapkin siblings as the Clapkin children, i.e.,
{Clapkins} ⊂ {Clapkin children}.

3
B. The Levins and the Clapkins Clash over Control of
JLR; the Levins-Clapkins Feud Moves to Court
At JLR’s annual shareholder meeting in February 2022
Shana, Dina, and Marci were elected as directors, and the
directors appointed Shana as president. During the meeting
Tamara had the locks changed at JLR’s corporate office, and the
Levins refused to give keys to the Clapkins. After the meeting
Shana hired outside advisors, fired Andrew and the other two
employees, and limited the Clapkins’ access to JLR’s records. In
June 2022 Dina and Marci voted to remove Shana as president
and to appoint Marci as president. The Levins, however, refused
to accept the results of the election. Between June and
September 2022 the Levins and the Clapkins filed the first four
actions against each other, including a wrongful termination
action by Andrew and a shareholder derivative action by the
Levins.

C. The Levins Dispute the Clapkins’ Right To Vote the
Trust’s Shares
In October 2022 Sheila’s husband resigned “with respect
only to the Trust’s interest in” JLR. In November 2022 Sheila’s
physicians declared her incapacitated due to Parkinson’s disease
dementia. The Clapkins contended that, because Sheila was
incapacitated and her husband had resigned as trustee, under
the terms of the trust the Clapkin children became successor
cotrustees of Sheila’s trust. In November 2022 the Clapkins
voted 51.8 percent of JLR’s shares (the trust’s 37 percent, plus
their 14.8 percent (3.7 x 4)) to wind up and dissolve JLR. The
Clapkins also filed a petition for judicial supervision and
appointment of a receiver (the fifth action between the cousins).

4
The Levins disputed the Clapkins’ authority to vote the
trust’s shares and opposed dissolving JLR. They contended the
transfer of shares from Sheila as trustee to the Clapkin children
as successor cotrustees violated JLR’s buy-sell agreement, which
Sheila, Michael, and Ronald executed in 1994 “to establish
consistent and harmonious policies and to assure continuity of
management by persons who have a proprietary interest in” JLR.
To further its stated purpose of providing “for the purchase of the
Shares of a Shareholder following the death of such Shareholder
and on the occurrence of certain other events,” paragraph 2.1 of
the buy-sell agreement limits a shareholder’s ability to transfer
JLR shares “other than to the Corporation or to the other
Shareholders.” The agreement states that, “[n]otwithstanding
Paragraph 2.1,” a shareholder may transfer shares to his or her
“immediate family” or to “a revocable inter vivos trust for the
transferring Shareholder’s benefit and in which the transferring
Shareholder continues to maintain control of the transferred
Shares in his or her capacity as a trustee of said trust, so long as
the transferring Shareholder retains in his or her individual
capacity the voting power connected with the Shares so
transferred.”
The Levins argued the provision regarding transfers to a
trust meant “no one other than Sheila” could vote the trust’s
shares. They also argued Sheila’s “purported transfer of the
‘voting power’ connected with” her shares was, under the terms of
the buy-sell agreement, “void and ineffectual” and should “be
deemed to constitute an offer to the remaining shareholders to
sell” the shares under the agreement’s involuntary transfer
provision. In January 2023 the Levins sent notices of election to
purchase the trust’s shares under that provision.

5
The Clapkins disputed the Levins’ interpretation of the
buy-sell agreement, arguing the agreement permitted “unlimited
transfer of shares to the children of shareholders.” They asserted
that, in executing the buy-sell agreement, Sheila, Michael, and
Ronald intended “to ensure that ownership and control of JLR
would remain within the family” and that they “did not seek to
prevent . . . shareholders from transferring shares among
themselves, or their shareholders from passing on their shares to
their children.”
In February 2023 the Levins held an annual shareholders’
meeting; the Clapkins objected on the ground “JLR had been in
voluntary dissolution since November 2022.” The Levins and the
Clapkins brought separate ballots and held competing elections.
Shana refused to count the Clapkins’ ballots (which identified the
Clapkins as cotrustees of the trust). She announced she, Tamara,
and JLR’s bookkeeper had been elected directors. On
February 14, 2023 the Levins filed the sixth action between the
parties—a complaint to validate the election of the three
directors.
In May 2023 the trial court presiding over the six pending
actions ruled the probate court had exclusive jurisdiction to
determine the trustees of the trust. The trial court ordered the
Clapkins to file a petition in probate court and stayed the six civil
actions except for two issues unrelated to the identity of the
trustees.
In June 2023 the Clapkins filed a petition in probate court
(the eighth action)3 for an order confirming the Clapkin children

3 The seventh action was an interpleader action by JLR’s
insurer regarding the insurance proceeds for a warehouse that
was damaged by fire.

6
became successor cotrustees of the trust as of November 2022. In
January 2024 the probate court granted the Clapkins’ ex parte
application, suspended Sheila as trustee, and appointed the
Clapkin children as interim successor cotrustees. In May 2024
the probate court granted the Clapkins’ petition and ruled the
Clapkin children were cotrustees of the trust regarding the JLR
shares as of November 6, 2022, and for all purposes as of June 13,
2023 (the day Sheila’s husband resigned as trustee). The Levins
filed objections to the petition, but the probate court ruled the
Levins were not interested parties in the trust. The Levins
appealed from the probate court’s orders. That appeal is pending.

D. The Levins File This Action Against the Clapkins
But there’s more. On January 29, 2024, after the probate
court ruled the Clapkin children were interim successor
cotrustees, the Clapkins asked the Levins to register the trust’s
shares in the names of the Clapkin children. The Levins filed
this action against the Clapkins (number nine) the same day.
The Levins alleged that the Clapkins breached the buy-sell
agreement by transferring the voting power of the trust’s shares
from Sheila to the Clapkins and that the Levins had the right to
buy the trust’s shares under the buy-sell agreement’s involuntary
purchase provision. The Levins sought an order requiring the
Clapkins to sell the trust’s shares to the Levins, an injunction
prohibiting the Clapkins from voting the trust’s shares, and a
constructive trust over the shares.
On January 10, 2024 Andrew served a notice of the annual
shareholders’ meeting for February 13, 2024 to occur in the

7
parking lot of JLR’s principal place of business. 4 The Levins,
however, filed a statement with the Secretary of State in 2023
changing JLR’s principal place of business to a new address, and
on February 2, 2024 Tamara served a notice setting the annual
shareholders’ meeting at that location. Both the Levins and the
Clapkins filed ex parte applications seeking orders regarding the
Clapkins’ ability to vote the trust’s shares at the annual meeting,
which the trial court denied. On February 13, 2024 the Levins
and the Clapkins held separate annual shareholders meetings.
At the Clapkins’ meeting the Clapkins elected Marci, Andrew,
and Dina as directors.

E. The Clapkins File a Cross-complaint Against the
Levins
On March 14, 2024 the Clapkins filed a cross-complaint in
this action against the Levins. The Clapkins alleged: “In their
battle for control of JLR, the Levins have repeatedly contended
that the Clapkins are not the successor trustees of the Trust,
despite the Trust’s directive otherwise, in a transparent attempt
to block JLR’s largest shareholder—the Trust—from having a
vote in the selection of JLR’s Board of Directors. . . . [¶] The crux
of the instant action is a dispute as to who has the right to own or
vote the shares of JLR held in the Trust, as those shares, in
conjunction with the Clapkins’ own shares, would indisputably
give the Clapkins majority control of JLR.” The Clapkins
asserted causes of action for violation of Corporations Code
sections 700, subdivision (a), and 708, subdivision (a); breach of

4 The company headquarters where JLR held annual
shareholders’ meetings for more than a decade burned down in
2022.

8
fiduciary duty; declaratory relief; determination of officers and
directors under Corporations Code section 709; and breach of
contract. They sought, among other things, an injunction
requiring the Levins and JLR to reregister the Trust’s shares in
the names of the Clapkin children as interim successor
cotrustees; an injunction prohibiting the Levins from depriving
the Clapkins of their right to vote their shares; and an order
confirming the appointment of Marci, Dina, and Andrew as
officers and directors of JLR.

F. The Trial Court Denies the Levins’ Special Motion
To Strike
On May 15, 2024 the Levins filed a special motion to strike,
in whole or in part, the Clapkins’ causes of action for violation of
Corporations Code sections 700, subdivision (a), and 708,
subdivision (a); breach of fiduciary duty; declaratory relief; and
determination of officers and directors under Corporations Code
section 709. The Levins argued that the causes of action were
“based on the Levins’ ‘refusal’ to register the Trust’s shares in the
Clapkins’ names,” that the “registration and voting of the Trust’s
shares [were] squarely in dispute” in five pending actions, and
that the Clapkins’ cross-complaint was based on the Levins’ filing
of their complaint and other litigation activity. In their
opposition to the Levins’ motion, the Clapkins requested
attorneys’ fees under section 425.16, subdivision (c).
The trial court denied the Levins’ special motion to strike.
The court ruled that the Clapkins’ causes of action did not arise
from protected activity and that the “controversy exists separate
and apart from the preexisting litigation and concerns the
parties’ current rights and ability to vote in matters

9
concerning JLR.” The court did not address the Clapkins’ request
for attorneys’ fees. The Levins timely appealed from the order
denying the special motion to strike. The Clapkins timely
appealed from the (implied) order denying their request for
attorneys’ fees.

DISCUSSION

A. Section 425.16
Section 425.16, subdivision (b)(1), states 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.” Section 425.16, subdivision (e), provides an
“‘act in furtherance of a person’s right of petition or free speech
under the United States or California Constitution in connection
with a public issue’ includes: (1) any written or oral statement or
writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law”
and “(2) any written or oral statement or writing made in
connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official
proceeding authorized by law.” “Section 425.16 ‘provides a
procedure for weeding out, at an early stage, meritless claims
arising from protected activity.’” (Newport Harbor Ventures, LLC
v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 642;
see Zhang v. Jenevein (2019) 31 Cal.App.5th 585, 592.)

10
Courts use a two-step process to evaluate special motions to
strike under section 425.16. “First, ‘the moving defendant bears
the burden of establishing that the challenged allegations or
claims “aris[e] from” protected activity in which the defendant
has engaged.’ [Citation.] Second, for each claim that does arise
from protected activity, the plaintiff must show the claim has ‘at
least “minimal merit.”’ [Citation.] If the plaintiff cannot make
this showing, the court will strike the claim.” (Bonni v.
St. Joseph Health System (2021) 11 Cal.5th 995, 1009; see Park v.
Board of Trustees of California State University (2017) 2 Cal.5th
1057, 1061; Norman v. Ross (2024) 101 Cal.App.5th 617, 646.)
We review de novo an order granting or denying a special motion
to strike under section 425.16. (Bonni, at p. 1009; Norman, at
p. 646.)

B. The Trial Court Did Not Err in Denying the Levins’
Special Motion To Strike

1. Applicable Law A court may strike a cause of action “‘only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability.’” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884; see Park v. Board of Trustees of California State University, supra, 2 Cal.5th at p. 1063.) The “‘trial court should distinguish between (1) speech or petitioning activity that is mere evidence related to liability and (2) liability that is based on speech or petitioning activity.’” (Park, at p. 1065.) A “claim does not ‘arise from’ protected activity simply because it was filed after, or because of, protected activity, or when protected activity merely provides evidentiary support or context for the claim.”

11
(Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621;
see Park, at p. 1063.) “Rather, the protected activity must
‘supply elements of the challenged claim.’” (Rand, at p. 621; see
Park, at p. 1063 [“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”].)

1. The Clapkins’ Causes of Action Do Not Arise from Protected Activity The Levins argue the Clapkins’ causes of action arise from the Levins’ protected petitioning activity of initiating lawsuits against, and opposing lawsuits by, the Clapkins. The Levins, however, did not show any of the Clapkins’ causes of action arise from litigation activity. In their first cause of action for violation of Corporations Code sections 700, subdivision (a), and 708, subdivision (a), 5 the Clapkins alleged that, even though the probate court appointed

5 Corporations Code section 700, subdivision (a), states:
“Except as provided in Section 708 and except as may be
otherwise provided in the articles, each outstanding share,
regardless of class, shall be entitled to one vote on each matter
submitted to a vote of shareholders.” Corporations Code
section 708, subdivision (a), states: “Except as provided in
Sections 301.5 and 708.5, every shareholder complying with
subdivision (b) and entitled to vote at any election of directors
may cumulate such shareholder’s votes and give one candidate a
number of votes equal to the number of directors to be elected
multiplied by the number of votes to which the shareholder’s
shares are normally entitled, or distribute the shareholder’s votes
on the same principle among as many candidates as the
shareholder thinks fit.”

12
the Clapkin children as interim successor cotrustees of the trust,
the Levins refused to register the trust’s shares in the Clapkins’
names, denying the Clapkins the right to vote the trust’s shares.
Similarly, in their second cause of action for breach of fiduciary
duty 6 the Clapkins alleged: “The Levins’ refusal to allow the
Trust’s shares to be registered in the name of the duly appointed
interim successor trustees for the Trust, solely to benefit their
own interests and to maintain unlawful control of JLR, is a
grievous breach of the fiduciary duties owed by the Levins to the
Trust and to the Clapkins.” In both causes of action the Clapkins
sought an order directing the Levins to “register the Trust’s
shares in the names of the Co-Trustees pursuant to the Probate
Court’s Order and enjoin the Levins and JLR from taking any
action to deprive, limit or undermine the Trust’s and Clapkins’
rights as shareholders in JLR, including, but not limited to, the
right to vote on all matters on which a shareholder is entitled to
vote under California law or the JLR Bylaws.” 7
Regarding the Clapkins’ third cause of action for
declaratory relief, the Levins moved to strike the following
allegations: “The Clapkins contend that: ¶ the Levins, on

6 “The elements of a cause of action for breach of fiduciary
duty are the existence of a fiduciary relationship, breach of
fiduciary duty, and damages.” (Oasis West Realty, LLC v.
Goldman (2011) 51 Cal.4th 811, 820.) The Clapkins alleged the
Levins, as officers, directors, and controlling shareholders of JLR,
owed fiduciary duties to the trust and to the Clapkins.
7 The Clapkins also alleged the Levins breached their
fiduciary duties by refusing to disclose financial information
regarding JLR, but the Levins did not move to strike those
allegations.

13
behalf of JLR, are legally obligated to register the Trust’s shares
in the names of Cross-Complainants, as interim Co-Trustees of
the Trust, pursuant to the Probate Court’s Order. ¶ Absent a
temporary restraining order, preliminary injunction or final court
order finding that the ownership or right to vote JLR shares is
limited or has been transferred to another, the trustees of a trust
that has owned the shares are entitled to vote those shares in
JLR’s elections irrespective of whether other parties have
asserted claims to those shares” under the buy-sell agreement.
The first three causes of action are based on and arise from
the Levins’ unprotected activity in denying the Clapkins their
right to vote the trust’s shares at annual shareholders meetings
in 2023 and 2024 by refusing to register the shares in the names
of the Clapkin children as successor cotrustees. The Levins’
litigation activities do not supply any element of these causes of
action. (See Rand Resources, LLC v. City of Carson, supra,
6 Cal.5th at p. 621; Park v. Board of Trustees of California State
University, supra, 2 Cal.5th at p. 1063.) In other words, even if
there had been no previous litigation between the Clapkins and
the Levins, the Clapkins could have asserted the same causes of
action against the Levins based on the Levins’ refusal to allow
the Clapkin children to vote the trust’s shares. (See WasteXperts,
Inc. v. Arakelian Enterprises, Inc. (2024) 103 Cal.App.5th 652,
661 [if prelitigation communications “had contained no reference
to legal action, express or implied, the disputed overlap between
the parties’ services would still exist”]; Gotterba v. Travolta
(2014) 228 Cal.App.4th 35, 42 [if “the threats of litigation were
removed from [the defendant’s] demand letters, the same dispute
would exist regarding the terms of the termination agreement”].)

14
In their fourth cause of action under Corporations Code
section 709, subdivision (a), the Clapkins asked the court to find
that the Clapkins’ shareholder and board meetings on
February 13, 2024 were valid, that the directors elected and the
officers selected at those meetings were validly elected and
selected, and that the Levins’ competing meeting was invalid.
The Levins moved to strike only one allegation from this cause of
action: that the Levins were “estopped” from enforcing the
requirement the Clapkins “appear in person to be denied the
right to vote the Trust’s shares” at the Levins’ meeting because
through “court arguments, pleadings and elsewhere, the Levins
made clear that they would not let the Clapkin Children vote the
Trust’s shares at the Levin Meeting, and it was futile for the
Clapkins to appear in person to be denied the right to vote the
Trust’s shares at the Levin meeting.” The Levins argued “an
essential element” of this cause of action was based on the Levins’
statements in judicial proceedings. The Clapkins’ reference to
“court arguments” and “pleadings,” however, does not supply an
element of the cause of action. First, the Clapkins alleged the
Levins communicated they would not let the Clapkins vote the
trust’s shares not only in court arguments and pleadings, but also
“elsewhere.” Second, Corporations Code section 709,
subdivision (a), authorizes an action “by any shareholder or by
any person who claims to have been denied the right to vote.”
The Clapkins are shareholders who claim to have been denied the
right to vote. Attendance at the Levins’ meeting is not an
essential element of the cause of action under the statute.
The Levins argue the cross-complaint is based on the
Levins’ protected litigation activity because, “[w]ell before the
Clapkins filed their Cross-Complaint in this action, the validity of

15
the Clapkins’ attempt to register and vote the Trust’s shares was
already the subject of the parties’ ongoing litigation.” True, by
the time the Clapkins filed their cross-complaint, the parties had
been involved in multiple lawsuits over control of JLR for more
than a year. But the “‘mere fact that an action was filed after
protected activity took place does not mean the action arose from
that activity for the purposes of [section 425.16].’” (Park v. Board
of Trustees of California State University, supra, 2 Cal.5th at
p. 1063; see City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76-
77.) Indeed, a compulsory cross-complaint always involves the
“same transaction, occurrence, or series of transactions or
occurrences” as the complaint. (§ 426.10, subd. (c); see Joslin v.
Third Laguna Hills Mutual (2020) 49 Cal.App.5th 366, 372
[“a cross-complaint will ordinarily not be considered a SLAPP
[strategic lawsuit against public participation] suit because a
cross-complaint usually arises from the underlying dispute
alleged in the complaint, and not out of the litigation process
itself”]; Kajima Engineering and Const., Inc. v. City of
Los Angeles (2002) 95 Cal.App.4th 921, 934 [a “‘compulsory cross-
complaint on a “related cause of action” against the plaintiff
[citation] would rarely, if ever, qualify as a SLAPP suit arising
from petition activity’” because a “‘SLAPP suit is not “related” to
the transaction or occurrence which is the subject of the
plaintiff's complaint, but arises out of the litigation process
itself’”].)
Citing Cordoba Corp. v. City of Industry (2023)
87 Cal.App.5th 145, the Levins argue a cross-complaint can arise
out of the litigation process. Cordoba Corp., however, does not
support the Levins’ position. In that case a city sued a consultant
for, among other things, subcontracting its work without

16
authorization, submitting false invoices, and conspiring with
others to conceal the true facts. (Id. at pp. 149-150.) The
consultant filed a cross-complaint against the city for breach of
contract, breach of the implied covenant of good faith and fair
dealing, and declaratory relief, claiming the city breached a
provision of its contract with the consultant precluding the city
from raising any issue about an invoice more than 30 days after
receipt. (Id. at p. 152.) The court in Cordoba Corp. affirmed the
trial court’s order granting the city’s special motion to strike the
contractor’s cross-complaint under section 425.16, concluding the
consultant’s cross-complaint did “not target an underlying
controversy that exists apart from the City’s litigation. There is
no other dispute between them.” (Cordoba Corp., at p. 153.) The
court stated that, though the consultant sought a declaration
addressing its duties under the contracts, the consultant no
longer had any duties under the contracts, and the “only use of a
declaration now would be to undermine the City’s legal claims.”
(Id. at p. 154.) Here, in contrast, the Clapkins’ cross-complaint
targets their underlying dispute with the Levins over control of
the trust’s shares, a dispute that existed before and apart from
the Levins’ litigation activities.
The Levins also rely on Birkner v. Lam (2007)
156 Cal.App.4th 275, but that case does not help them either. In
Birkner the defendant landlord served a termination notice on
the plaintiff tenants so the landlord could move his mother into
their apartment. (Id. at p. 279.) The tenants told the landlord
that he could not evict them without violating the rent
stabilization ordinance, but the landlord refused to rescind the
notice. After the landlord’s mother died, however, the landlord
rescinded it. (Ibid.) The tenants filed a complaint for wrongful

17
eviction and violation of the rent stabilization ordinance, and the
landlord filed a special motion to strike. (Id. at pp. 278, 280.)
The court in Birkner held that, though the landlord did not file an
unlawful detainer action, he would have, had his mother not died
(id. at p. 280), and prosecuting an unlawful detainer action
“indisputably is protected activity within the meaning of
section 425.16.” (Birkner, at p. 281.) The court also stated that,
“if the termination notice is a legal prerequisite for bringing an
unlawful detainer action, as it is in this case [citations], service of
such a notice does constitute activity in furtherance of the
constitutionally protected right to petition.” (Id. at p. 282.)
Because the “‘sole basis for liability’” was the landlord’s service of
an eviction notice and his refusal to rescind it after the tenants
claimed the notice violated the rent stabilization ordinance, the
tenants’ complaint arose from the landlord’s protected activity.
(Id. at p. 283.) The Levins contend the Clapkins’ causes of action,
like the tenants’ complaint in Birkner, are based on “actions
taken in connection with ongoing or anticipated litigation.” But
as discussed, the Clapkins’ causes of action arise from the Levins’
refusal to allow the Clapkins to vote the trust’s shares, not from
the Levins’ litigation activities or any pre-litigation activity
analogous to serving a rental termination notice.
The Levins argue the Clapkins’ cross-complaint “describes
at length the various lawsuits that the Clapkins have filed to
enforce their alleged right to vote the Trust’s shares and that the
Levins have filed to stop the Clapkins from voting the Trust’s
shares” and “repeatedly alleges that the Levins’ legal position in
the ongoing litigation is ‘meritless.’” But the Clapkins mentioned
the Levins’ litigation conduct to provide context for the dispute
and as evidence of the alleged statutory violations and breaches

18
of fiduciary duty. For example, the Clapkins alleged: “Based on
the Levins’ filing of this action, their subsequent ex parte
application, and their repeated failure to provide any response to
the Clapkins’ demands that the shares be reregistered in the
Clapkin Children’s names, it is clear that the Levins do not
intend to let JLR register the Trust’s shares in the names of the
Clapkin Children.” “‘If the core injury-producing conduct upon
which the plaintiff’s claim is premised does not rest on protected
speech or petitioning activity, collateral or incidental allusions to
protected activity will not trigger application’” of section 425.16.
(Area 51 Productions, Inc. v. City of Alameda (2018)
20 Cal.App.5th 581, 594; see WasteXperts, Inc. v. Arakelian
Enterprises, Inc., supra, 103 Cal.App.5th at p. 661 [though the
complaint mentioned protected prelitigation communications
“‘numerous’ times,” the “lawsuit [arose] from the dispute, not the
communication”]; Starr v. Ashbrook (2023) 87 Cal.App.5th 999,
1020 [beneficiary’s surcharge action against a trustee arose from
the trustee’s misuse and waste of trust money to fund litigation,
not the trustee’s protected activity in pursuing litigation]; Gaynor
v. Bulen (2018) 19 Cal.App.5th 864, 880 [litigation activities
“would provide evidence of the alleged breaches of fiduciary duty,
but the filing of these petitions was not necessary to establish
this portion of the breach of fiduciary duty claim”].)
The Levins also rely on a letter counsel for the Clapkins
sent counsel for the Levins a few days after the probate court
appointed the Clapkin children as interim successor cotrustees
and two weeks before the February 2024 annual shareholder
meeting. The Levins argue counsel’s letter “demanded that the
Levins’ counsel ‘reregister’ the Trust’s shares because the
Clapkins claimed the Probate Court’s Order required the Levins

19
to do so.” The Levins contend the letter “admitted the very
purpose of the Clapkins’ demand to ‘reregister’ the Trust’s shares
was to end the litigation over the voting issue.” But that is not
what the letter said. In the letter counsel for the Clapkins stated
he was writing “in connection with implications of the [probate
court order] and the other steps needed to prepare for the
February 13, 2024 annual shareholder meeting and election of
JLR’s directors” and stated counsel’s desire “to ensure that the
votes held in the Trust can be voted and counted in the
February 13 election.” Indeed, counsel for the Clapkins
acknowledged the litigation would continue: Counsel stated that
the Levins’ interpretation of the buy-sell agreement was
“nonsense and will ultimately be defeated on the merits,” but
that “it can have no bearing on the validity of the February 13,
2024 shareholder election.” Counsel also stated the dispute
regarding the interpretation of the buy-sell agreement “will be
decided in arbitration pursuant to Section 17 of the Buy-Sell
Agreement,” but that the Clapkin children had “the right to vote
their shares at the February 13, 2024 annual shareholder
meeting, and in all other circumstances unless and until an
arbitrator or court determines that the Levins have the right to
buy those shares under the Buy-Sell Agreement.”
The Levins also argue the Clapkins’ cross-complaint arises
from protected activity because it “repeatedly asks the trial court
to ‘enforce’ the Probate Court Order.” The Levins contend that
they “actively dispute” the Clapkins’ interpretation of the probate
court order in pending litigation and that the Levins “engaged in
protected petitioning activity when they refused to accede to the
Clapkins’ disputed interpretation of the Probate Court Order in
the ongoing litigation.” The Clapkins’ allegations, however, are

20
not based on the Levins’ litigation over the interpretation of the
order. The Clapkins attached the probate court order to the
cross-complaint and alleged “JLR, acting at the direction of the
Levins, has refused to reregister the Trust’s shares in the names
of the Clapkins, despite the probate court’s appointment of the
Clapkins as interim successor trustees.” In support of the
request for injunctive relief on their causes of action for violation
of Corporations Code sections 700 and 708 and for breach of
fiduciary duty, the Clapkins alleged they “have a clear legal right
to the relief requested and are likely to succeed on the merits in
this matter because [they] seek to enforce the prior Order of the
probate court.” The Clapkins alleged the Levins violated their
statutory and fiduciary duties by refusing to register the trust’s
shares in the names of the Clapkin children, which the Clapkins
contended the probate court order required them to do. The
Clapkins do not seek to prevent the Levins from disputing the
meaning of the order or otherwise litigating the issue of who
controls the trust’s shares, in this action or in any of the
(numerous) other pending actions. And the Levins continue to do
just that: They appealed from the probate court’s later order
granting the Clapkins’ petition for confirmation of successor
trustee and finding the Clapkin children were cotrustees of the
trust.
Similarly lacking in merit is the Levins’ contention the
cross-complaint asks the trial court “to ‘enjoin’ the Levins from
continuing their ongoing litigation.” The Levins base this
contention on the Clapkins’ request (in their causes of action for
breach of fiduciary duty and for violation of Corporations Code
sections 700 and 708) the trial court “enjoin the Levins and JLR
from taking any action to deprive, limit or undermine the Trust’s

21
and Clapkins’ rights as shareholders in JLR, including, but not
limited to, the right to vote on all matters on which a shareholder
is entitled to vote under California law or the JLR Bylaws.”
Though the Clapkins’ language may be broad, read in context it
is clear the Clapkins seek to enjoin the Levins from preventing
the Clapkins from voting the trust’s shares, not to enjoin the
Levins from litigating. For example, in their cause of action for
violating Corporations Code sections 700 and 708 the Clapkins
alleged the Levins have denied the Clapkins the right to vote the
trust’s shares on the ground the shares were not registered in the
Clapkins’ names, in contravention of Corporations Code
section 702, subdivision (a), which provides “no trustee shall be
entitled to vote shares held by such trustee without a transfer of
such shares into the trustee’s name.”
The cross-complaint makes clear the Clapkins are not
asking the trial court to enjoin the Levins from litigating against
them through what the Clapkins refer to as “carve-outs.” For
example, the Clapkins alleged that, even if the Levins prevail in
the litigation in the future, the Levins must register the trust’s
shares in the names of the Clapkin children and allow them to
vote those shares “until and unless any adverse judgment might
be entered.” Similarly, the Clapkins alleged they are entitled to
vote the trust’s shares in JLR’s elections absent “a temporary
restraining order, preliminary injunction or final court order
finding that the ownership or right to vote JLR shares is limited
or has been transferred to another.” Thus, the cross-complaint
acknowledges a court may rule against the Clapkins in the
pending litigation; it does not, as the Levins contend, “seek to
compel the Levins to capitulate their legal position in the ongoing
litigation.” The cases the Levins cite, where plaintiffs sought to

22
prevent or stop defendants from suing them, are inapposite. (See
Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th
53, 57 [plaintiff “sought an injunction barring [the defendant]
from filing a Proposition 65 enforcement action”];
CKE Restaurants, Inc. v. Moore (2008) 159 Cal.App.4th 262, 271
[plaintiff “threatened to sue [the defendants] unless they
withdrew their” Proposition 65 notice].) 8

C. The Trial Court’s Order Denying the Clapkins’
Request for Attorneys’ Fees Is Not Appealable
The Clapkins argue the trial court erred in denying their
request for attorneys’ fees under section 425.16, subdivision (c),
which requires the court to award attorneys’ fees to a prevailing
plaintiff if the court finds the special motion to strike “is frivolous
or is solely intended to cause unnecessary delay.” We do not have
jurisdiction to hear the Clapkins’ appeal.
An “appellate court generally lacks jurisdiction to decide an
appeal from an order unless the order is one that is expressly
made appealable by statute.” (Meinhardt v. City of Sunnyvale
(2024) 16 Cal.5th 643, 652; see Griset v. Fair Political Practices
Com. (2001) 25 Cal.4th 688, 696 [a “trial court’s order is

8 The Levins also argue the Clapkins’ causes of action could
not arise from the Levins’ failure to reregister the trust’s shares
because “the Clapkins had already purported to register the
Trust’s shares, and the parties were actively litigating the
validity of that registration.” However, as the Clapkins point out,
“the Levins have denied the validity of the Clapkins’ registration
and further denied the Clapkins their ability to vote the Trust’s
shares on the basis that the shares were not registered in the
Clapkins’ names.”

23
appealable when it is made so by statute”].) Section 425.16,
subdivision (i), states: “An order granting or denying a special
motion to strike shall be appealable under Section 904.1.” 9
Neither section 425.16 nor section 904.1, however, authorizes an
appeal from an order granting or denying a motion for attorneys’
fees.
“When we interpret a statute, [o]ur fundamental task . . . is
to determine the Legislature’s intent so as to effectuate the law’s
purpose. We first examine the statutory language, giving it a
plain and commonsense meaning. . . . If the language is clear,
courts must generally follow its plain meaning unless a literal
interpretation would result in absurd consequences the
Legislature did not intend. [Citation.] However, [i]f the
statutory language permits more than one reasonable
interpretation, courts may consider other aids, such as the
statute’s purpose, legislative history, and public policy.”
(Gutierrez v. Tostado (2025) 18 Cal.5th 222, 231, internal
quotation marks omitted; see Smith v. LoanMe, Inc. (2021)
11 Cal.5th 183, 190.)
In Doe v. Luster (2006) 145 Cal.App.4th 139 we held an
order denying a motion for attorneys’ fees filed by a plaintiff who
successfully opposed a special motion to strike was not
appealable. (Id. at p. 142.) We concluded the plain meaning of
section 425.16, subdivision (i), which authorizes an appeal from
an order granting or denying a special motion to strike, did not
encompass a ruling on “an interlocutory order granting or
denying attorney fees following the trial court’s ruling on a

9 Section 904.1, subdivision (a)(13), in turn, provides an
appeal may be taken from “an order granting or denying a special
motion to strike under Section 425.16.”

24
special motion to strike.” (Doe, at p. 147.) After reviewing the
legislative history of section 425.16, we held: “The Legislature’s
concern was that the inability to appeal immediately from the
denial of a meritorious special motion to strike defeated the
protective purpose of section 425.16. No such similar purpose is
served by permitting an immediate appeal from an interlocutory
order granting or denying attorney fees following the trial court’s
ruling on a special motion to strike.” (Doe, at p. 147.)
Though in Doe v. Luster, supra, 145 Cal.App.4th 139 we
considered whether a separate order denying attorneys’ fees to a
plaintiff who successfully opposed a motion under section 425.16
was appealable, we also stated “[t]here similarly is no creditable
argument that combining the two motions—one that results in an
immediately appealable order; one that does not—somehow
transforms the nonappealable order into one that is appealable.”
(Doe, at p. 150.) We continue to follow Doe and decline to follow
cases concluding that, where a party appeals from an order
granting or denying a special motion to strike, section 425.16,
subdivision (i), also confers appellate jurisdiction over an order
granting or denying attorneys’ fees. (See, e.g., Gumarang v.
Braemer on Raymond, LLC (2025) 110 Cal.App.5th 370, 387-388;
Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 275.) The
problem with Gumarang and Baharian-Mehr is that the
statutory language does not support their conclusion. That it
might be more efficient to consider appeals from both orders at
the same time does not override plain statutory language making
only one of the orders appealable.

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DISPOSITION

The order denying the special motion to strike is affirmed.
The Clapkins’ appeal from the order denying their request for
attorneys’ fees is dismissed. The Levins’ motion to augment the
record is granted. The Clapkins’ request for judicial notice is
denied. The Clapkins are to recover their costs on appeal.

SEGAL, Acting P. J.

We concur:

FEUER, J.

STONE, J.

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