Judge John J. Kralik, Case Number: 23BBCV01862, Date: 2023-12-01 Tentative Ruling

Plaintiff Qin Zhou (“Plaintiff”) alleges that Defendants Diana Gomez, Defendant William Antonio Barrera, Jr., and non-party Sadia Gomez-Rosas are alleged to be the daughters and son of Esperanza Barrera, deceased (“Decedent”). Decedent is alleged to be the trustee of the Barrera Family Trust Agreement Dated October 3rd, 1996 (“Barrera Family Trust”) and Sadia Gomez-Rosas is alleged to be the successor trustee to Decedent.

Plaintiff alleges that in her capacity as trustee, Decedent entered into a contract to sell 2309 N. Naomi Street, Burbank, CA 91504 to Plaintiff. (Compl., ¶10.) Escrow for the sale of the property was opened on or about May 2, 2022. (Id., ¶11.) Plaintiff alleges that Defendants, without legal justification, and with full knowledge of the purchase and sale contract under which Plaintiff was to become the owner of the property in May 2022, recorded a lis pendens against the property and commenced an action in the Los Angeles Superior Court, Case No. 22BBCV00328 against Decedent in an attempt to stop the sale and Defendants filed a Notice of Pendency of Action on May 11, 2022 in LASC Case No. 22BBCV00328 (“First Action”). (Id., ¶12.) Plaintiff alleges that Defendants asserted in the First Action that they should have been named as beneficiaries of the Trust and that they were wrongfully disinherited, but that Judge Kralik held that even if Defendants’ factual allegations were correct about them being beneficiaries, they had no rights to the property—only rights to a portion of the proceeds of the sale of the property. (Id., ¶13.)

Decedent died on October 29, 2022. (Id., ¶14.) Sadia Gomez-Rosas, as successor trustee, defended the First Action filed by Diana Gomez and William Antonio Barrera, Jr. and after 3 rounds of demurrers, the trial court granted Sadia Gomez-Rosas’ motion to expunge the lis pendens on February 17, 2023, finding that Defendants had not and could not state a real property claim. (Id., ¶¶15, 17, Ex. 1.) Plaintiff alleges that the sale of the property was rescheduled and escrow was to close in August 2023. (Id., ¶16.) However, Plaintiff alleges that Defendants again recorded a lis pendens against the property in August 2023 in an attempt to stop the sale of the property and that this prevented the closing of escrow as scheduled. (Id., ¶17.) Plaintiff alleges that Defendants violated CCP § 405.36 by recording another lis pendens without leave of court and that they filed a Petition in the Probate Department as LASC Case No. 23STPB08705 (“Probate Action”) on August 7, 2023 in an attempt to evade section 405.36. (Id., ¶18.)

The complaint, filed August 11, 2023, alleges causes of action for: (1) intentional interference with contract; (2) intentional interference with prospective economic advantage; and (3) negligent interference with prospective economic advantage. The Court will refer to this action in LASC Case No. 23BBCV01862 as the “Second Action.”

On October 12, 2023, Defendants Diana Gomez and William Antonio Barrera, Jr. filed a special motion to strike Plaintiff’s complaint pursuant to CCP § 425.16.

CCP § 425.16 permits the Court to strike causes of action arising from an act in furtherance of the defendant's right of free speech or petition, unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim. (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 615.) In other words, “[a] court may strike a cause of action only if the cause of action (1) arises from an act in furtherance of the right of petition or free speech ‘in connection with a public issue,’ and (2) the plaintiff has not established ‘a probability’ of prevailing on the claim.” (Id. at 619-620.)

The defendant bears the initial burden of showing that: (1) the claims fall within the class of suits subject to a motion to strike under CCP § 425.16(e) and (2) the plaintiff’s claims in fact arise from defendant’s conduct in further of his right to free speech. (Id. at 620; Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 304.) Under CCP §425.16(b)(2), the Court may consider the pleadings and supporting affidavits in making its determination. Subdivision (e) defines the “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with at public issues” as including:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;

(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;

(3) 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

(4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

If the defendant meets this initial burden, the plaintiff then has the burden of demonstrating a probability of prevailing on the claim. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741.) The plaintiff satisfies this burden by demonstrating 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. (Id.) Under CCP §4 25.16(b)(2), a plaintiff may use affidavits to meet the plaintiff’s burden.

The evidentiary showing by the plaintiff must be made by competent and admissible evidence. (Morrow v. Los Angeles Unified Sch. Dist. (2007) 149 Cal.App.4th 1424, 1444; Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497-98 [proof cannot be made by declaration based on information and belief]; Tuchscher Dev. Enters., Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236-38 [documents submitted without proper foundation could not be considered in determining plaintiff's probability of prevailing on its claim].)

Defendants Diana Gomez and William Antonio Barrera, Jr. (“Defendants”) specially move to strike Plaintiff’s complaint in the Second Action and seek an award of monetary sanctions against Plaintiff and her attorney of record for attorney’s fees and costs pursuant to CCP § 425.16.

Defendants argue that they can establish the first prong of the anti-SLAPP statute because their filing of the First Action, filing and recording a lis pendens in May 2022 in the First Action, filing the Probate Action, and filing the second lis pendens in the Probate Action are protected litigation-related conduct. CCP § 425.16(e)(1) and (2) define protected activities as: “(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.”

Defendants argue that they filed the First Action in this Department in order to show that Decedent lacked authority to sell the subject property as a Trust asset, that the Trust was irrevocable and could not be amended, and that the beneficiaries were defrauded out of their inheritance in a portion of the subject property by introducing a “phony” trust (the Amended and Restated Trust). Defendants argue that the fact that they went to the wrong court first by filing the First Action does not mean that their claims lacked merit, but instead that they mistakenly chose the wrong forum to hear their dispute. In the First Action, the Court granted Sadia Gomez-Rosas’ motion to expunge the lis pendens on February 17, 2023, finding that Diana Gomez and William Antonio Barrera, Jr.’s pleading did not include a real property claim because they did not hold any title in the subject property to support a quiet title cause of action and thereby lacked standing to bring a quiet title claim. (Valenzuela Decl., Ex. 3 [2/17/23 First Action Order at p.4].) Thereafter, on June 16, 2023, the Court ruled on Sadia Gomez-Rosas’s demurrer to the Third Amended Complaint in the First Action, which included an order that Diana Gomez and William Antonio Barrera, Jr. file an action in the Probate Department or relate the First Action with any probate action and ordered a stay in the First Action pending refiling with the Probate Department. (Valenzuela Decl., Ex. 4 [6/16/23 First Action Order].) Defendants then filed the Probate Action on August 7, 2023.[1] (Valenzuela Decl., Ex. 5 [8/7/23 Probate Action Complaint].) They argue that their claims are still pending in the Probate Action and that their conduct in filing the actions and filing the second lis pendens (which they state has not been recorded) are protected activities. (Mot. at p.4, lines 14-16.)

In opposition, Plaintiff argues that Defendants’ conduct of recording a notice of lis pendens in May 2022 is not privileged because this Court already determined in the First Action that Defendants’ claims were not based upon a real property claim. (Opp. at p. 5, lines 3-5.) Plaintiff argues that the recording of a lis pendens is not privileged if it is not based on a real property claim. A real property claim is one that, if meritorious, would affect the title to, or the right of possession of, specific real property. (CCP § 405.4.) Plaintiff clarifies that her complaint “does not seek to prevent Defendants from pursuing their claims in their ongoing trust litigation. Plaintiff’s lawsuit here concerns only the Defendants’ wrongful interference with her attempt to purchase the Property, and the damages she is entitled to recover.” (Opp. at p.4, lines 12-15.) Plaintiff relies on Civil Code, § 47, which states in relevant part:

(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except as follows:

(4) A recorded lis pendens is not a privileged publication unless it identifies an action previously filed with a court of competent jurisdiction which affects the title or right of possession of real property, as authorized or required by law.

(Civ. Code, § 47(b)(4).)[2] “Therefore, if the pleading filed by the claimant in the underlying action does not allege a real property claim, or the alleged claim lacks evidentiary merit, the lis pendens, in addition to being subject to expungement, is not privileged. It follows the lis pendens in that situation may be the basis for an action for slander of title.” (Palmer v. Zaklama (2003) 109 Cal.App.4th 1367, 1380, 1381 [“The Zaklamas, in reliance on Albertson, contend the complaint failed to state facts sufficient to constitute a cause of action for slander of title because the recordation of a lis pendens is absolutely privileged. However, as we have explained, the privilege does not attach unless the underlying action properly alleges a real property claim.”].)

While the recording of a lis pendens would, at first glance, appear to be a privileged action, this is not an absolute privilege. The litigation privilege does not apply if the recordation of the lis pendens was not a privileged publication. With respect to the May 2022 lis pendens notice filed/recorded in the First Action, the privilege did not attach because the First Action did not properly allege a valid real property claim through the quiet title action. As such, Defendants have not met their burden on the first prong.

In their motion, Defendants also argue that the filing of the second lis pendens (not recordation) in the Probate Action is protected litigation-related conduct. However, as clarified by Plaintiff in her opposition brief, her complaint in the Second Action is regarding Defendants’ conduct in recording the first lis pendens notice in the First Action. (Opp. at pp.4-5.) While there are allegations in Plaintiff’s complaint in the Second Action regarding Defendants’ recordation of a second lis pendens without leave of court[3] (Pl.’s Compl. in the Second Action, ¶18) or that her attempted purchase was disrupted a second time in August 2023, the causes of action for interference with contract, intentional interference with economic advantage, and negligent interference with prospective economic advantage are regarding the recordation of the first lis pendens, which disrupted her attempted purchase of the subject property in May 2022 and her hopes of benefiting from a timely 1031 exchange at that time. (Id., ¶¶27, 35 50.)

As Defendants have not met their initial burden on the first prong, the special motion to strike Plaintiff’s complaint in the Second Action is denied. As noted above, Plaintiff has conceded that that her complaint does not seek to prevent Defendants from pursuing their claims in the Probate Action and focuses on the recordation of the first lis pendens in May 2022. (See Opp. at pp.4-5.) Based on the papers and the arguments/evidence present to the Court, the second lis pendens has only been filed (not recorded) n the Probate Action and no determination has been made regarding whether the lis pendens is proper or will be expunged.

B. Prong 2 Probability of Prevailing on the Claims – Plaintiff’s Shifted Burden

As discussed above, Defendants have not met their initial burden on the first prong. As such, the burden does not shift to Plaintiff to demonstrate the probability of prevailing on the merits of her claims against Defendants.

Defendants Diana Gomez and William Antonio Barrera, Jr.’s special motion to strike Plaintiff Qin Zhou’s complaint is denied. Defendants’ request for monetary sanctions and attorney’s fees is denied.

Defendants are ordered to file a responsive pleading to Plaintiff’s complaint pursuant to code.

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[1] The Probate Action’s complaint, Petitioners Diana Gomez and William Antonio Barrera, Jr. allege causes of action for: (1) to invalidate amendment and restatement of the Barrera 1996 Trust Agreement; (2) to invalidate 2022 amendment; (3) for an order for return of trust property to Trust (Probate Code, §§ 850, 856, 859); (4) cancellation of instruments; (5) breach of duties of trustees (Probate Code, § 16000 et seq.); (6) an order compelling trustees to account and disclose trust information; (7) an order compelling trustees to turnover trust’s books and records; (8) removal of trustee of original trust and appointment of successor trustee; (9) surcharge of trustee; (10) imposition of constructive trust (Civil Code, §§ 2223 and 2224); (11) enforcement of the terms of the original Trust; (12) IIED; and (13) injunctive relief.

[2] On page 5 of the opposition papers, Plaintiff argues that “Judge Kralik found in Case No. 22BBCV00328 that the lis pendens Defendants recorded did not affect ‘the title or right of possession of real property, as authorized or regulated by law.’” The Court has reviewed its February 27, 2013 and June 16, 2023 orders in the First Action and finds that it did not make this statement as represented by Plaintiff. In the prior orders on the motion to expunge lis pendens and the demurrer to the TAC in the First Action, the Court did not discuss the litigation privilege pursuant to Civil Code, § 47. In addition, the Court only discussed the quiet title cause of action as asserted in First Action (i.e., whether title would be affected) and did not discuss the right of possession because the Court only discussed the quiet title cause of action.

[3] CCP § 405.36 states: “Once a notice of pending action has been expunged, the claimant may not record another notice of pending action as to the affected property without leave of the court in which the action is pending.” Defendants did not refile/re-record a lis pendens in the First Action, but instead filed another lis pendens in the separately filed Probate Action.

Superior Court of California

County of Los Angeles

Department B