NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CHAVEZ, J.

Plaintiff and appellant Robin Rodriguez (plaintiff), as Executor for the Estate of Rami Rodriguez (Rodriguez), appeals from the judgment entered in favor of defendants and respondents Lynard C. Hinojosa and Lisa Fisher (Hinojosa, Fisher, or defendants) after the trial court granted defendants' respective special motions to strike (anti-SLAPP motions), pursuant to Code of Civil Procedure section 425.16 (section 425.16) to plaintiff's first amended complaint. We affirm the judgment.

BACKGROUND

1. The Underlying Conservatorship Case

Plaintiff was married to Rodriguez, a successful businessman who accumulated substantial wealth during his lifetime. In October 2003, plaintiff filed a petition in probate court to impose a conservatorship on Rodriguez after Rodriguez's brother removed him from the marital home against plaintiff's wishes and had him hospitalized. Both plaintiff and Rodriguez's niece, Dorothy Acciani (Acciani), sought to be appointed as Rodriguez's conservator. On October 15, 2003, the probate court appointed Fisher as Rodriguez's Probate Volunteer Panel (PVP) attorney.1

Fisher retained various physicians, including Dr. Stephen Read (Dr. Read) to evaluate Rodriguez. Dr. Read prepared a report dated November 22, 2003, in which he concluded that Rodriguez lacked the capacity to manage his assets, lacked the capacity to give informed consent to any form of medical treatment, and was substantially unable to resist fraud and undue influence. With regard to whether Rodriguez was capable of meaningfully expressing his feelings and intent concerning his situation, Dr. Read stated: "In my professional opinion, Mr. Rami Rodriguez is capable of clear and meaningful statements of his current feelings and intent. Specifically, it is my opinion that Mr. Rodriguez at this time clearly and consistently indicates his desire no longer to live with his wife Robin Stacy Rodriguez and to divorce her." Dr. Read noted, however, that although Rodriguez "gave no indication of fear or of duress in expressing these opinions," Rodriguez could not explain the reasons for these opinions.

In March 2004, plaintiff served a deposition subpoena on Dr. Read, including a request for documents. Fisher filed a motion to quash the subpoena on the ground that Dr. Read was a consultant, not a designated expert. On April 26, 2004, the probate court granted the motion to quash on the condition that Dr. Read be immediately subject to deposition if any expert interviewed him, or reviewed or relied on any report or document from him.

One month before the trial in the conservatorship case, the probate court appointed Hinojosa to associate into the case as co-counsel for Rodriguez. The trial date was continued to July 2004. For purposes of the upcoming trial, the parties stipulated that Rodriguez required a conservator. Rodriguez, through his counsel, nominated Acciani as the conservator of his person and his estate. Plaintiff stipulated that she would not seek to have herself appointed as conservator but requested the appointment of an independent conservator.

A bench trial commenced on July 27, 2004. When defendants sought to present Dr. Read as an expert witness, plaintiff sought to exclude Dr. Read's testimony in its entirety on the ground that she had been unable to depose him before the trial. The probate court allowed Dr. Read's testimony, on the condition that plaintiff's counsel be allowed to depose him before he testified at trial. Plaintiff's counsel deposed Dr. Read on August 2, 2004. During the deposition, plaintiff's counsel did not ask Dr. Read whether he had prepared a report, nor did counsel ask for a copy of that report. Dr. Read testified at trial two days later. His November 2003 report was not presented as evidence at the trial, nor was Dr. Read questioned about the report during his testimony.

On October 5, 2004, two months after the trial concluded, the probate court rendered its decision and found that Rodriguez did not have sufficient capacity to select Acciani as his conservator at the time he nominated her as such, nor did he have such capacity at the time of the trial. The court noted that Rodriguez had been diagnosed with progressive aphasia, Alzheimer's disease, and severe dementia and that he appeared to be afflicted with paranoid delusions that made it difficult for him to resist undue influence from his family. The court found that members of Rodriguez's family led him to believe that plaintiff was poisoning him with arsenic, having an affair, and transferring assets to her name. The probate court concluded that it was not in Rodriguez's best interest to have Acciani serve as his conservator and appointed an independent and neutral conservator in her stead. Rodriguez died the following year.

2. The Instant Lawsuit

Plaintiff commenced this action against defendants in August 2008. In the operative first amended complaint, plaintiff, as the executor of Rodriguez's estate, alleged causes of action for fraudulent concealment and nondisclosure, negligence, and breach of fiduciary duty. According to plaintiff, the "crux of the lawsuit" is that defendants intentionally concealed Dr. Read's report, "which contained material facts of consequence to the determination of the conservatorship proceedings." Plaintiff further alleged that Hinojosa "coerced and/or convinced Dr. Read into providing deposition testimony that substantially differed from the findings in the concealed Report" and that defendants and Dr. Read "conspired in concealing the Report" during the conservatorship proceedings.

Defendants filed separate anti-SLAPP motions, arguing that plaintiff's claims against them arose from protected activity because they were based on alleged acts in the course of representing Rodriguez in the conservatorship proceeding. Defendants further argued that plaintiff could not establish a probability of prevailing on her claims.

Following a hearing on the motions, the trial court took the matter under submission. On July 13, 2009, the trial court entered its order granting the anti-SLAPP motions. The court concluded that plaintiff's claims were based on actions defendants had taken as advocates for Rodriguez in the conservatorship proceeding. The trial court further concluded the evidence demonstrated "there was no hiding of the report and that the report does not state what is contended in the complaint [that Rodriguez lacked the capacity to select a conservator, thus] there is no likelihood that plaintiff will prevail." This appeal followed.

DISCUSSION

I. Applicable Law and Standard of Review

Section 425.16 provides in relevant part: "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 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." (§ 425.16, subd. (b)(1).) Determining whether the statute bars a given cause of action requires a two-step analysis. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) First, the court must decide whether the party moving to strike a cause of action has made a threshold showing that the cause of action "aris[es] from any act . . . in furtherance of the [moving party's] right of petition or free speech." (§ 425.16, subd. (b)(1); Navellier, supra, at p. 88.) "`A cause of action "arising from" [a] defendant's litigation activity may appropriately be the subject of a section 425.16 motion to strike.' [Citations.] `Any act' includes communicative conduct such as the filing, funding, and prosecution of a civil action. [Citation.] This includes qualifying acts committed by attorneys in representing clients in litigation. [Citations.]" (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)

If the court finds that a defendant has made the requisite threshold showing, the burden then shifts to the plaintiff to demonstrate a "probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1); Navellier, supra, 29 Cal.4th at p. 88.) In order to demonstrate a probability of prevailing, a party opposing a special motion to strike under section 425.16 "`"must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited."' [Citation.]" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741 (Jarrow), fn. omitted.)

A trial court's order granting a special motion to strike under section 425.16 is reviewed de novo. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.)

II. Arising from Protected Activity

In deciding whether a defendant has satisfied the initial "arising from" requirement under section 425.16, a court considers "`the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' (§ 425.16, subd. (b).)" (Navellier, supra, 29 Cal.4th at p. 89.) Examination of the pleadings and declarations in this case shows that each of plaintiff's causes of action is premised upon defendants' representation of Rodriguez in the conservatorship proceeding, a protected activity under section 425.16.

Plaintiff's causes of action for fraudulent concealment, negligence, and breach of fiduciary duty are all premised on an alleged breach of duty based on defendants' failure to disclose a November 2003 report prepared by Dr. Read while acting as a consultant for Rodriguez in the underlying conservatorship proceeding. Plaintiff alleges that defendants opposed plaintiff's efforts to obtain the report during discovery and then failed to disclose the report at trial because it contained findings that were contrary to the position they asserted during the trial. Plaintiff alleges that the report contains Dr. Read's express finding that Rodriguez lacked the mental capacity to select Acciani as his conservator.

While the gravamen of plaintiff's claims is that defendants breached duties of care and loyalty, this does not obviate the need to examine the specific acts of alleged wrongdoing. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 671 (Peregrine).) "The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability — and whether that activity constitutes protected speech or petitioning." (Navellier, supra, 29 Cal.4th at p. 92.) The conduct that is alleged here to be a breach of duty — the filing of a motion to quash a premature deposition subpoena, resisting plaintiff's efforts during discovery to obtain a consultant's report, and presenting Dr. Read's testimony as a witness at trial instead of the written conclusions in his report — are activities "in furtherance of the exercise of the constitutional right of petition" and are thus protected under section 425.16. (§ 425.16, subd. (e)(4); Peregrine, supra, 133 Cal.App.4th at p. 672 [attorneys' selectively responding to discovery request by withholding documents that would have been harmful to client was conduct in furtherance of protected petitioning activity].)

The cases on which plaintiff relies as support for her argument that the claims she alleges do not arise from protected activity are distinguishable, as none of them involved conduct in furtherance of the right to petition. (See, e.g., PrediWave Corp. v. Simpson Thatcher & Bartlett LLP (2009) 179 Cal.App.4th 1204 [alleged failure to advise client of conflict of interest in joint representation of parties with adverse interests]; Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532 [alleged failure to exercise reasonable care and skill while representing plaintiffs in homeowner litigation]; Freeman v. Schack (2007) 154 Cal.App.4th 719 [attorney's representation of a party with interests adverse to client].) The instant case involves no alleged conflict of interest or garden variety legal malpractice, nor any breach of duty premised on an alleged failure to disclose Dr. Read's report to Rodriguez himself.

The trial court thus correctly determined that defendants met the threshold requirement of demonstrating that the causes of action asserted against them arise from activity protected under section 425.16.

III. No Reasonable Probability of Prevailing

Because the trial court correctly determined that plaintiff's claims against defendants arose from conduct that is protected under section 425.16, we must now determine whether plaintiff met her burden of "demonstrat[ing] a probability of prevailing on the claim[s]." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) To satisfy this burden, "the plaintiff must `state[] and substantiate[] a legally sufficient claim.' [Citation.] `Put another way, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited."' [Citation.]" (Jarrow, supra, 31 Cal.4th at p. 741, fn. omitted.) "Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation. [Citation.]" (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)

A. Fraudulent Concealment

"[T]he elements of a cause of action for fraud based on concealment are: `"(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. [Citation.]" [Citation.]' [Citation.]" (Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 850.) Plaintiff presented no evidence to support her claim that defendants fraudulently concealed Dr. Read's report.

There is no evidence that Dr. Read's report was concealed from Rodriguez, defendants' client, nor is there any evidence that defendants concealed the report from plaintiff, the opposing party in the conservatorship proceeding. The evidence shows that plaintiff and her counsel were aware of Dr. Read's report and sought to obtain a copy of it during an unsuccessful attempt to depose Dr. Read before his designation as an expert. Plaintiff and her counsel did not renew their efforts to obtain the report, however, after Dr. Read was designated as an expert and made available for deposition. Although plaintiff and her counsel deposed Dr. Read, they did not ask him for a copy of his report, nor did they question him about whether he had prepared such a report. Plaintiff and her counsel also had the opportunity to cross-examine Dr. Read during his testimony at the conservatorship proceeding, but they did not question him about the report. Plaintiff failed to make the prima facie showing necessary to establish a probability of prevailing on her cause of action against defendants for fraudulent concealment.

B. Negligence and Breach of Fiduciary Duty

An essential element of both plaintiff's negligence and breach of fiduciary duty claims is causation — that defendants' alleged misconduct was the cause in fact of plaintiff's damages. (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199 [professional negligence]; Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1405 [breach of fiduciary duty].) Plaintiff alleges that defendants' failure to disclose Dr. Read's report caused her to suffer damages, including excessive attorney fees in the conservatorship proceeding, emotional distress, and loss of consortium and companionship.

Plaintiff did not establish the element of causation because she failed to provide any evidence that nondisclosure of Dr. Read's report was the cause in fact of her damages. The evidence showed that at all times during defendants' representation of Rodriguez, he stated that he wanted Acciani to be appointed as his conservator. Although plaintiff alleged that Dr. Read's report "made the express finding" that Rodriguez "did not have the mental capacity to select Dorothy Acciani as his conservator," the report contains no such finding. Rather, it states that while Rodriguez suffered from Alzheimer's disease and was in need of a conservator to manage his affairs, he was nevertheless "capable of clear and meaningful statements of his current feelings and intent" and "clearly and consistently indicates his desire no longer to live with his wife Robin Stacy Rodriguez and to divorce her."

The evidence in the record does not support plaintiff's allegation that Hinojosa coerced or convinced Dr. Read into providing deposition testimony that differed substantially from the findings in his report. Consistent with the findings in his report, Dr. Read testified during his deposition that Rodriguez was capable of making a meaningful statement of his preference for Acciani as his conservator. There was no evidence that Dr. Read's testimony at trial differed materially from the opinions set forth in his report. Notwithstanding that testimony, the probate court disagreed with Dr. Read's opinion that Rodriguez was capable of meaningfully nominating Acciani as his conservator and appointed a neutral conservator instead.

Plaintiff failed to make the prima facie showing necessary to establish a probability of prevailing on her causes of action for negligence and breach of fiduciary duty.

DISPOSITION

The judgment is affirmed. Defendants are awarded their costs on appeal.

We concur:

DOI TODD, Acting P. J.

ASHMANN-GERST, J.