Clapkin v. Levin

Cite as B340606
Filed March 16, 2026
Second District, Div. Seven

By Golnaz Yazdchi
Sheppard Mullin Richter & Hampton LLP
https://www.sheppardmullin.com

Headnote: Plaintiff co-trustees’ request to enforce probate court order to transfer corporate assets into trust, filed in the context of a longstanding corporate dispute, did not give rise to an anti-SLAPP motion where plaintiffs’ requests for relief merely referenced the prior ongoing litigation between the parties but did not seek to impair defendants’ protected litigation activity.

Summary:  Plaintiff co-trustees filed a cross-complaint asking the trial court in longstanding corporate dispute, among other requested relief, to confirm a probate court order to transfer corporate assets to the plaintiffs as new co-trustees. The trial court denied the defendants’ anti-SLAPP motion, and the appellate court affirmed the denial.  Plaintiffs’ reference to defendants’ prior failure to transfer the shares in related litigation did not constitute an improper attack on protected activity. For the anti-SLAPP statute to apply, protected litigation activity must supply the elements of and constitute the basis for the challenged claim. The prior litigation activity cannot merely provide background, context, or evidentiary support for the claim.

The Levins (Shana and Tamara) and the Clapkins (Andrew, Dina, Marci, and Karen) are cousins who inherited shares in a closely held family real estate corporation, JosLevin Realty Corp. (“JLR”).  Since 2022, the families have had ongoing disputes concerning the management, control and ownership of JLR, resulting in at least nine lawsuits.  The majority shareholder of JLR is the Clapkins’ mother’s trust (“Sheila’s Trust”).  After Sheila became incapacitated and her husband resigned as trustee, the Clapkins became successor co-trustees and attempted to vote the majority of JLR’s shares. In response, the Levins disputed the Clapkin children’s authority and contended that the transfer of shares from Sheila, as trustee, to the Clapkin children, as successor co-trustees, violated a 1994 buy-sell agreement and triggered a sale to the Levins. The Clapkins obtained probate court orders confirming their appointment as successor co-trustees of Sheila’s Trust. But the Levins refused to re-register the trust shares in the Clapkin children’s names as co-trustees.  The Levins filed suit alleging that the Clapkins breached the buy-sell agreement and that the Levins therefore had the right to buy Sheila’s Trust’s shares under the buy-sell agreement’s involuntary purchase provisions.  The Clapkins filed a cross-complaint asserting Corporations Code violations, breach of fiduciary duty, breach of contract, and seeking  declaratory and other relief based on the Levins’ failure to comply with the probate court’s order and re-register the shares in the trust.  The Levins brought a special motion to strike (anti-SLAPP motion) arguing the Clapkins’ cross-claims arose from the Levins’ protected litigation activity, including their prior suits demanding sale of the shares to the Levins. The trial court denied the motion.

The appellate court affirmed.  Although the cross-complaint mentioned the Levins’ litigation conduct to provide context for the dispute and as evidence of the alleged statutory violations and breaches, the cross-claims arose from the Levins’ unprotected activity in denying the Clapkins their right to vote Sheila’s Trust’s shares and refusing to register the shares in the names of the Clapkins as successor co-trustees, not the protected litigation activity.

https://www4.courts.ca.gov/opinions/documents/B340606.PDF

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