Judge: John B. Scherling, Case: 37-2022-00023933-PR-LA-CTL, Date: 2024-01-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - January 25, 2024

01/26/2024  02:00:00 PM  502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

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Probate  Letters Of Administration Demurrer / Motion to Strike (Probate) 37-2022-00023933-PR-LA-CTL ESTATE OF YVONNE MARIE CHAVEZ [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 09/29/2023

Pursuant to Superior Court of San Diego County, Local Rules, rule 4.23.7, the Court's tentative ruling is as follows: The Motion to Strike filed by David Chavez (ROA 80) is DENIED.

I. BACKGROUND On June 21, 2022, David Chavez ('Respondent'), the surviving spouse of Yvonne Marie Chavez ('Decedent'), filed a Petition for Letters of Administration with Authorization to Administer Under the Independent Administration of Estates Act. (ROA 1, Supp. at ROA 23.) On August 1, 2022, Angela Young and Christa Brown ('Petitioners') filed a competing Petition for Letters of Administration with Authorization to Administer Under the Independent Administration of Estates Act. (ROA 10.) The Court granted this petition in October 2022, appointing Kristen M. Fritz as the administrator of Decedent's estate. (ROA 29, Minute Order filed Oct. 12, 2022; ROA 31, Order for Probate.) On December 1, 2022, Respondent filed a Spousal Property Petition ('Spousal Petition'). (ROA 42, Supp. at ROA 60.) On August 1, 2023, Petitioners' filed a Petition to Confirm Existence and Terms of Trust; for Breach of Spousal Fiduciary Duty and Damages ('Petition'). (ROA 76.) On September 29, 2023, Respondent filed the instant motion to strike pursuant to CCP § 425.16 and for monetary sanctions in the amount of $7,209.49 against Petitioners and/or their attorney of record. (ROA 80.) Respondent moves to strike the second cause of action for breach of spousal fiduciary duties and damages, specifically lines 26-28 at page 4, lines 1-18, paragraphs 7-8, at page 5, and the second prayer for relief, lines 26-27, at page 6.

On January 12, 2024, Petitioners filed an opposition. (ROA 97.) On January 19, 2024, Respondent filed a reply. (ROA 100.) II. DISCUSSION Calendar No.: Event ID:  TENTATIVE RULINGS

3032708 CASE NUMBER: CASE TITLE:  ESTATE OF YVONNE MARIE CHAVEZ [IMAGED]  37-2022-00023933-PR-LA-CTL A. Legal Standard A party seeking the protection of section 425.16 has the initial burden of establishing that the statute applies. (CCP § 425.16(b).) Under the statute, courts are required to engage in a two-step process. (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67-68.) First, the court decides whether defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (Ibid.) The moving defendant's burden is to demonstrate the acts of which plaintiff complains were taken in furtherance of defendant's right of petition or free speech under the United States or California Constitution in connection with a public issue. (Ibid.) In making this determination, a court considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' (CCP § 425.16(b)(2).) Where a claim arises from protected activity, the burden shifts to the plaintiff to establish a probability of prevailing on the merits. (CCP § 425.16(b)(1).) 'Only a cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute.' (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) The statute defines an act 'in furtherance of' the right of petition or free speech to include 'any written or oral statement or writing made before a ... judicial proceeding'; 'any written or oral statement or writing made in connection with an issue under consideration or review by a ... judicial body'; 'any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest'; or 'any other conduct in furtherance of the exercise of the constitutional right of petition ... of free speech in connection with a public issue or an issue of public interest.' (CCP § 425.16(e)(1)-(4).) The '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, at p. 92.) 'A plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one 'cause of action.'' (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308.) 'Thus, when allegations of nonprotected activity are incidental or collateral to a plaintiff's claim challenging primarily the exercise of the rights of free speech or petition, they may be disregarded in determining whether the cause of action arises from protected activity. Conversely, if the allegations of protected activity are only incidental to a cause of action based essentially on nonprotected activity, the mere mention of the protected activity does not subject the cause of action to an anti-SLAPP motion.' (Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 414-415.) B. Analysis Respondent moves to strike certain allegations in the Petition on the grounds that the second cause of action (breach of fiduciary duties and damages) is based on Respondent filing petitions in this Court, which is constitutionally protected activity. Respondent argues the Petition alleges that Petitioners were damaged by Respondent filing his petitions (ROA 1 and 42) and thus, the Petition is subject to anti-SLAPP. Respondent argues that '[t]he Petitions filed by Mr. Chavez are the gravamen of the cause of action, they are not incidental to the cause of action. Petitioners' premise is effectively a demand that Mr. Chavez should not have been allowed to file a spousal property petition in the first place.' (ROA 79, Memo of Ps & As at p. 5.) Respondent further argues that Petitioners will be unable to show a probability of succeeding on the claim of damages based on Respondent's act of filing his petitions, which is privileged under Civil Code § 47.

Petitioners oppose the motion arguing that this Court instructed Petitioners to file an affirmative petition and the Petition is in direct response to Respondent's petitions. Petitioners argue the motion should be denied because: '(1) the Children's filing of their Petition was not intended to chill David's right to petition Calendar No.: Event ID:  TENTATIVE RULINGS

3032708 CASE NUMBER: CASE TITLE:  ESTATE OF YVONNE MARIE CHAVEZ [IMAGED]  37-2022-00023933-PR-LA-CTL the courts but rather to object to the merits of the relief he sought in his own petitions and challenge the unprotected activity of disregarding the validity of Yvonne's trust, (2) the Children's Petition is protected by the litigation privilege because their Petition is a publication to this Court to seek relief to challenge David's unprotected activity, and (3) the Children can demonstrate their claims have merit.' (ROA 97, Oppo. at p. 1-2.) The Petition alleges a cause of action for damages based on breach of the spousal fiduciary duties pursuant to Family Code §§ 721 and 1101(g) and (h). In relevant part, the Petition alleges that Decedent relied on Respondent to create a Trust to govern Decedent's assets upon her death, and Respondent failed to properly set up the Trust during Decedent's lifetime. (ROA 76, Pet. at ¶ 7.) The Petition further alleges that 'Respondent has now filed Petitions wherein Respondent has attempted to sweep the Udderlymooving Trust under the rug, as if it did not exist, in an attempt to take the daughters' share of Yvonne's assets. [¶] 8. Instead of filing his own Petition to confirm the existence and terms of the Udderlymooving Trust that he created for Yvonne, at the outset of any proceedings following the death of Yvonne, Respondent instead (1) filed a Petition to open probate proceedings and have himself appointed the personal representative under the theory of intestate succession and then (2) followed that filing up with a spousal property petition, neither of which mention the Udderlymooving Trust, and for which he now attempts to leave out Yvonne's children and step-child as beneficiaries of her estate pursuant to the Spousal Petition that he filed. This conduct has caused Petitioners damage in that they have been forced to participate in court proceedings against Respondent in an ongoing effort to prove that there was an agreement between Yvonne and Respondent, as admitted by Respondent in deposition, that Yvonne's daughters and step-daughter are to receive assets (in contrast to his spousal property petition) from Yvonne's estate. Damages against Respondent are therefore appropriate under Family Code §1101(g) or (h).' (Id. at ¶ 8, emphasis added.) The core of the allegations seeking damages under Family Code § 1101(g) or (h) is that Respondent failed to properly set up a Trust and fund it, and ignored what appears to be an existing Trust, the Udderlymooving Trust. Thus, while the Petition refers to Respondent's filing of petitions in this Court and thereby creates some ambiguity in the pleadings, the injury-producing conduct is related to the Respondent's alleged disregard of the Trust, and the filing of the petitions is further evidence of the breach of spousal fiduciary duties. (Starr v. Ashbrook (2023) 87 Cal.App.5th 999, 1024 ['It is 'not the petitioning activity itself that is the basis for' Jonathan's surcharge cause of action (citation); rather, pursuing the Petition for Instructions and funding the elder abuse lawsuit were 'the reason' those activities were wrongful (citation) and provided 'evidence of the alleged breaches of fiduciary duty.'' Citing Gaynor v. Bulen (2018) 19 Cal.App.5th 864, 880, and Greco v. Greco (2016) 2 Cal.App.5th 810, 824.].) Thus, the Court finds that the second cause of action is not based on the filing of the petitions and not subject to CCP § 425.16.

Based on the foregoing, the Court need not rule on the second prong. (Aguilar v. Goldstein ((2012) 207 Cal.App.4th 1152, 1159 ['if the defendant fails to satisfy the first step, the court need not address the second step, and must deny the special motion to strike.'].) Therefore, while given the ambiguity in the Petition the Court does not find that the instant motion is frivolous or intended solely for delay, the motion to strike is DENIED without prejudice to other defenses Respondent may have, or other motions Respondent may file with respect to the second cause of action.

Counsel for Petitioners is directed to serve written notice of ruling in accordance with the provisions of CCP § 1019.5(a).

IT IS SO ORDERED.

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