California Legal Brief

The Rule of Clapkin v. Levin is that a cross-complaint does not arise from protected litigation activity under Code of Civil Procedure section 425.16 when the claims are based on the defendant's unprotected business conduct that supplies the elements of liability, even where the cross-complaint references prior litigation for context and evidence, under circumstances where the same dispute would exist absent the litigation activity.

Appeal from order denying special motion to strike in Superior Court, Los Angeles County.

Cross-defendant Appellant was Shana Levin and Tamara Levin — shareholders in family corporation JosLevin Realty Corp. who disputed the Clapkins' authority to vote trust shares and filed multiple lawsuits to maintain control.

Cross-complainant Respondent was Andrew B. Clapkin, Dina Marshall, Marci Clapkin Weiser, and Karen Callan — shareholders and successor cotrustees who sought to vote trust shares representing majority control of the family corporation.

The suit sounded in corporate shareholder disputes over voting rights and control. The Levins filed the underlying action alleging breach of buy-sell agreement; the Clapkins filed cross-claims for violation of Corporations Code sections 700 and 708, breach of fiduciary duty, declaratory relief, and determination of officers and directors under section 709.

The key substantive facts leading to the suit were that after matriarch Sheila Clapkin became incapacitated in November 2022, her children (the Clapkins) became successor cotrustees of a trust holding 37% of JLR shares. The probate court appointed them as interim successor cotrustees in January 2024, but the Levins refused to register the trust shares in the Clapkins' names or allow them to vote, denying the Clapkins majority control of the corporation.

The procedural result leading to the Appeal: The trial court denied the Levins' special motion to strike four causes of action in the Clapkins' cross-complaint, ruling that the controversy exists separate and apart from the preexisting litigation and concerns the parties' current rights and ability to vote in matters concerning JLR.

The key question(s) on Appeal: 1. Whether the Clapkins' cross-complaint causes of action arise from the Levins' protected litigation activity under Code of Civil Procedure section 425.16 2. Whether an order denying attorneys' fees under section 425.16(c) is appealable

The Appellate Court held that the Clapkins' causes of action arise from the Levins' unprotected refusal to register trust shares in the successor cotrustees' names and allow them to vote, not from the Levins' litigation activities, because the litigation conduct does not supply elements of the challenged claims and the same dispute would exist even without the prior lawsuits.

The case is inapplicable when the challenged claims are actually based on and arise from protected litigation activity itself (such as filing lawsuits or making statements in judicial proceedings) rather than underlying business conduct, or when litigation activity supplies essential elements of the causes of action rather than merely providing context or evidence.

The case leaves open whether different factual circumstances involving more direct litigation-based claims might satisfy the anti-SLAPP analysis, and does not resolve the merits of the underlying corporate control dispute or interpretation of the buy-sell agreement.