Judge: Lee W. Tsao, Case: 24NWCV01040, Date: 2025-06-12 Tentative Ruling
Case Number: 24NWCV01040 Hearing Date: June 12, 2025 Dept: C
Rivera, et al. v.
Lopez, et al.
CASE NO.: 24NWCV01040
HEARING: 6/12/2025 @
9:30 a.m.
#10
TENTATIVE ORDER
Defendants Steve Lopez and Law Office of Steve Lopez’s
Special Motion to Strike pursuant to CCP §425.16 is DENIED.
Defendant David Gonzalez’s Special Motion to Strike
pursuant to CCP §425.16 is DENIED.
Neither Attorney Defendants nor Defendant Gonzalez satisfy
the first prong of CCP §425.16.
Protected conduct is not at issue in this action. Moreover, CCP §425.16 does not apply to
actions for legal malpractice.
Moving party(s) to give notice.
Background
Plaintiff Ramon Rivera is the surviving son of decedent Olga
Rivera (“Decedent”). Plaintiff Rivera
filed the instant action as the Administrator of the Estate of Olga Rivera.
Plaintiff Rivera alleges that Decedent’s son, Defendant
David Gonzalez, took Decedent to Defendants Steve Lopez and the Law Office of
Steve Lopez (“Attorney Defendants”) in 2021.
Plaintiff alleges Defendants knew that Decedent was substantially unable
to manage her financial resources or to resist fraud or undue influence at the time. Plaintiff alleges Defendant Gonzalez filled
out Attorney Defendants’ intake sheet expressing changes that he wanted to make
to Decedent’s 2015 irrevocable trust.
Plaintiff alleges Decedent expressed the desire to allow Defendant
Gonzalez to live in her house (“Harcourt Property”) for her and thereafter for
his life.
Plaintiff Rivera alleges Attorney Defendants agreed to
provide Decedent with legal services.
However, instead of following Decedent’s instructions, Attorney
Defendants followed the instructions of Defendant Gonzalez and drafted a deed
transferring title to the Defendant Gonzalez.
Decedent refused to sign the draft deed, sensing that Defendants were
attempting to mislead her.
Plaintiff Rivera alleges Defendants attempted to defraud
Decedent again in 2022 or early 2023, when they drafted a completely new trust
document at Defendant Gonzalez’s request and/or a third party’s request. Decedent again refused to sign the newly
drafted trust, sensing once again that Defendants were attempting to mislead
her.
Plaintiff Rivera alleges that in January 2023, Attorney
Defendants drafted an amendment to Decedent’s 2015 trust at the request of
Defendant Gonzalez or another third party.
At the time, Decedent was suffering from a mental defect, mental disease
or major neurocognitive disorder.
Defendant was vulnerable and unable to resist fraud or undue
influence. As a result, she signed the
January 2023 (“Amendment”). Plaintiff
alleges Decedent was harmed as a result of the improperly obtained Amendment.
On April 3, 2024, Plaintiff filed a complaint in his
capacity as the administrator of Decedent’s estate against Defendants. Plaintiff alleges (1) Legal Malpractice
against Attorney Defendants and (2) Elder Abuse against all Defendants.
On October 30, 2024, Attorney Defendants and Defendant
Gonzalez each filed their own SLAPP Motion in response to the Complaint. On May 23, 2025, Plaintiff filed separate
oppositions to each SLAPP Motion. On
June 4, 2025, Defendants each filed separate replies to the oppositions.
I. Analysis
A. Applicable Law
“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 the 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.”
(CCP §425.16(b)(1).)
“As used in
this section, ‘act in furtherance of a person's right of petition or free
speech under the United States or California Constitution in connection with a
public issue’ includes: (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.” (CCP §425.16(e).)
“Litigation
of an anti-SLAPP motion involves a two-step process. First, the moving
defendant bears the burden of establishing that the challenged allegations or
claims arise from protected activity in which the defendant has engaged. Second, for each claim that does arise from
protected activity, the plaintiff must show the claim has “at least ‘minimal
merit. If the plaintiff cannot make this
showing, the court will strike the claim.”
(Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009
(where moving party seeks to strike an entire cause of action alleging multiple
factual bases, court does not determine whether 1st prong is met based on
“gravamen” test but must determine whether each factual bases supplies the
element of claim or merely provides context).)
Bonni expressly rejected the “gravamen” test, which had been
applied in the past. (Bonni, supra, 11 Cal.5th at 1009.)
On the first
step, “courts are to consider the elements of the challenged claim and what
actions by the defendant supply those elements and consequently form the basis
for liability. The defendant's burden is to identify what acts each challenged
claim rests on and to show how those acts are protected under a statutorily
defined category of protected activity.”
(Bonni, supra, 11 Cal.5th at 1009.)
Once
defendant demonstrates that a cause of action arises from protected conduct,
the burden shifts to plaintiff on the second step to 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. (Navellier
v. Sletten (2002) 29 Cal.4th 82, 88-89.)
“The second prong of the statute deals with whether the plaintiff has
“demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the
superior court, in making these determinations, considers ‘the pleadings, and
supporting and opposing affidavits stating the facts upon which the liability
or defense is based.’ For purposes of an anti-SLAPP motion, the court considers
the pleadings and evidence submitted by both sides, but does not weigh
credibility or compare the weight of the evidence. Rather, the court's
responsibility is to accept as true the evidence favorable to the
plaintiff. A plaintiff need only
establish that his or her claim has minimal merit to avoid being stricken as a
SLAPP. With these descriptions in mind,
we will not strike a cause of action under the anti-SLAPP statute unless it
lacks even minimal merit.” (Ralphs
Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261.)
The
“probability of prevailing” is tested by the same standard governing a motion
for summary judgment, nonsuit, or directed verdict. Thus, in opposing a SLAPP motion, it is
plaintiff's burden to make a prima facie showing of facts that would support a
judgment in plaintiff's favor.” (Taus v. Loftus (2007) 40 Cal.4th 683,
714 (a “summary-judgment-like procedure”).)
“Precisely
because the statute (1) permits early intervention in lawsuits alleging
unmeritorious causes of action that implicate free speech concerns, and (2)
limits opportunity to conduct discovery, the plaintiff's burden of establishing
a probability of prevailing is not high: We do not weigh credibility, nor do we
evaluate the weight of the evidence. Instead, we accept as true all evidence
favorable to the plaintiff and assess the defendant's evidence only to
determine if it defeats the plaintiff's submission as a matter of law. Only a cause of action that lacks ‘even
minimal merit' constitutes SLAPP.” (Overstock.com,
Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.) “In order to establish a probability of
prevailing on a cause of action in the context of an anti-SLAPP motion, a
plaintiff must state and substantiate a legally sufficient claim.” (La Jolla Group II v. Bruce (2012) 211
Cal.App.4th 461, 470.)
B. Attorney Defendants fail to establish that
Plaintiff’s complaint arises from protected conduct
i. The protected conduct identified by
Attorney Defendants in their SLAPP motion does not supply an essential element
of Plaintiff’s claims
Attorney
Defendants fail to establish that the protected conduct identified in their
SLAPP motion “supplies” an essential element of either Plaintiff’s legal
malpractice or elder abuse claim. (Bonni,
supra, 11 Cal.5th at 1009.) Attorney
Defendants argue Plaintiff’s claims arise from (1) Attorney Defendant’s
revisions of Olga’s estate planning documents; (2) Lopez’s initiating a
Petition on behalf of David Gonzalez with the probate court and (3) his
prosecuting the Petition to remove the Plaintiff as trustee and replace him
with David Gonzalez. (Attorney Defendant
SLAPP Motion, 10:19-24.) Attorney
Defendants argue Lopez’s initiation of a Petition on behalf of Gonzalez and
prosecution of that Petition are protected conduct under CCP §425.16(e)(1) and
(2), “any written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding authorized
by law” and “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.”
Based on the
Complaint allegations, Attorney Defendants committed legal malpractice during
their representation of Olga when they drafted the amendment to Decedent’s 2015
trust and obtained Decedent’s signature on the amendment through fraud and
undue influence. (Complaint, ¶20.) The Estate’s legal malpractice claims are
therefore based on Attorney Defendant’s improper revisions of Olga’s estate
planning documents, not the initiation of a probate petition on behalf of David
Gonzalez or his prosecution of that petition to remove Plaintiff as trustee and
replace him with David Gonzalez. Those
allegations appear nowhere in the Complaint.
Moreover,
Plaintiff’s legal malpractice claims are based on acts that Attorney Defendants
took on behalf of Decedent as their client.
As Attorney Defendants concede, the Petition for Removal of Trustee was
filed by them on behalf of David Gonzalez, not Decedent. (Attorney Defendants’ Request for Judicial
Notice, Ex. 5.) Attorney Defendants’
filing and prosecution of the Petition for Removal on Gonzalez’s behalf therefore
does not supply any element of Plaintiff’s legal malpractice claim.
Attorney
Defendants’ filing and prosecution of the Petition for Removal on Gonzalez’s
behalf also cannot form the basis of Plaintiff’s Elder Abuse cause of action. Those acts occurred after Decedent died. Attorney Defendants filed and prosecuted the
Petition for Removal on Gonzalez’s behalf in August 2023. Decedent died on April 3, 2023. (Attorney Defendants’ RJN, Ex. 4.) “‘Financial abuse’ of an elder or dependent
adult occurs when a person or entity does any of the following:…(3) Takes,
secretes, appropriates, obtains, or retains, or assists in taking, secreting,
appropriating, obtaining, or retaining, real or personal property of an elder
or dependent adult by undue influence, as defined in Section 15610.70.” (Welf. & Inst. Code, § 15610.30(a)). Attorney Defendants could not unduly
influence Decedent after she died.
Finally, Attorney
Defendants argue that their preparation of the 2015 Amendment, as well as their
obtaining Decedent’s signature thereon, qualify as protected conduct under
subsections (e)(1) and (2). However,
neither act was a statement or writing before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by law, and neither
act was a 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.
Attorney
Defendants rely on Cabral v. Martins (2009) 177 Cal.App.4th
471 in support of their argument that preparation of the 2015 Amendment to the
Trust qualifies as protected conduct because it was intimately intertwined with
and preparatory to the filing of the Petition for Removal of Trustee. Cabral is distinguishable for multiple
reasons.
Cabral
was not a legal malpractice action or an elder abuse action filed on behalf of
the deceased client against the decedent’s attorney. Cabral involved an action by an
ex-wife against her ex-husband, his siblings and several attorneys who
represented her ex-husband, his siblings and their mother. (Cabral, supra, 177 Cal.App.4th
at 475.) The ex-wife’s action was an
action to collect on her judgment for unpaid child support against her
ex-husband. (Id.) The ex-wife conceded that her complaint was
based on the revision of her mother-in-law’s will, her ex-husband and his
attorney’s filing of her mother-in-law’s will in the probate court, and the
actions of all the defendants in defending them in the various judicial
proceedings initiated by the ex-wife. (Id.
at 479 (“Tammy does not argue that any other activities underlie her cause
of action against the attorney respondents.”))
The Court of
Appeals found that the filing of the will in the probate action and the
litigation defense of all the defendants against the ex-wife’s various lawsuits
qualified as protected conduct under (e)(1) and (e)(2). “It is clear that the second and third
categories—the probate proceedings and the litigation defense—were protected
petitioning activity for purposes of the anti-SLAPP statute. Under the plain
language of section 425.16, subdivisions (e)(1) and (e)(2)… all communicative
acts performed by attorneys as part of their representation of a client in a
judicial proceeding or other petitioning context are per se protected as
petitioning activity by the anti-SLAPP statute.” (Id. at 479-480.)
However, as
to the out-of-court revision of the mother-in-law’s will, the Court stated that
“the will revision was of no effect in and of itself, but only insofar as it
was later implemented through the probate proceedings. Accordingly, the will revision was also
protected activity under the anti-SLAPP statute. Even if not, it was only incidental to the
subsequent protected activity, thus rendering Tammy’s entire cause of
action subject to a special motion to strike.”
(Cabral, supra, 177 Cal.App.4th at 483.) The finding that the will revision alone
qualifies as protected conduct was therefore dicta.
As dicta,
Cabral is not binding on the issue of whether revision of a will is
protected conduct. Plaintiff Rivera’s
case also does not involve revision of a will or probate of a will. Attorney Defendants fail to establish that
the 2015 Amendment was ineffective absent the Petition to Remove Plaintiff as
Trustee.
Cabral
was also decided before Bonni. In
Bonni, the Supreme Court clarified that the moving defendant on a SLAPP
motion must establish that the purported protected conduct supplies an
essential element of the plaintiff’s cause of action. Again, Cabral did not involve a legal
malpractice or elder abuse claim, nor do Attorney Defendants explain how their
filing and litigation of the Petition for Removal of Trustee could supply an
essential element of Plaintiff’s legal malpractice or elder abuse claim.
Attorney
Defendants’ SLAPP Motion is DENIED.
Attorney Defendants fail to establish that the complaint arises from
protected conduct, i.e. that protected conduct supplies an essential element of
Plaintiff’s claims for legal malpractice and elder abuse. As such, the Court need not reach the second
prong of the SLAPP analysis.
ii. SLAPP does not apply to garden-variety
malpractice claims
“Although
SLAPP has been interpreted broadly to protect qualifying statements made or
conduct undertaken by a person on another person's behalf against a cause of
action by a third person, it is unreasonable to interpret this language to
include a client's causes of action against the client's own attorney arising
from litigation-related activities undertaken for that client.” (Prediwave Corporation v. Simpson Thacher
& Bartlett LLP (2009) 179 Cal.App.4th 1204, 1228.) “The authorities have established that the
anti-SLAPP statute does not apply to claims of attorney malpractice.” (Chodos v. Cole (2012) 210 Cal. App.
4th 692, 702.)
“In
determining the applicability of the anti-SLAPP statute, we think a distinction
must be drawn between (1) clients' causes of action against attorneys based
upon the attorneys' acts on behalf of those clients, (2) clients' causes of
action against attorneys based upon statements or conduct solely on behalf of
different clients, and (3) non-clients' causes of action against attorneys. In
the first class, the alleged speech and petitioning activity was carried out by
attorneys on behalf of the plaintiffs in the lawsuits now being attacked as
SLAPPs, although the attorneys may have allegedly acted incompetently or in
violation of Professional Rules of Conduct. The causes of action in this first
class categorically are not being brought ‘primarily to chill the valid
exercise of the constitutional rights of freedom of speech and petition ....’
(§ 425.16, subd. (a).)” (PrediWave
Corp., supra, 179 Cal.App.4th at 1227.)
Plaintiff is alleging
legal malpractice against Attorney Defendants on behalf of Decedent’s
estate. Plaintiff is not alleging legal
malpractice on his own behalf, nor is he seeking damages to himself. Plaintiff is only seeking damages to Decedent
and/or the Estate of Decedent.
(Complaint, ¶¶34, 41 and 42.) Plaintiff’s
legal malpractice claim falls within the first category of claims described in PrediWave,
“clients' causes of action against attorneys based upon the attorneys' acts on
behalf of those clients.” (PrediWave
Corp., supra, 179 Cal.App.4th at 1227.)
“The causes of action in this first class categorically are not being
brought ‘primarily to chill the valid exercise of the constitutional rights of
freedom of speech and petition.” (Id.)
For these
reasons, SLAPP does not apply to the legal malpractice claim alleged against
Attorney Defendants. The SLAPP Motion is
DENIED.
C. Defendant Gonzalez fails to establish that
Plaintiff’s elder abuse claim against him arises from protected conduct
Defendant
Gonzalez is only named in the elder abuse claim. Defendant Gonzalez’s SLAPP motion is essentially
identical to Attorney Defendants, including reliance on Cabral to
establish that the drafting and execution of the 215 Amendment qualifies as
protected conduct. Like the Attorney
Defendants, Defendant Gonzalez claims that Plaintiff’s complaint is based on
protected conduct in the form of Attorney Defendants’ preparation and execution
of the 2015 Amendment and Attorney Defendants’ filing and prosecution of the
Petition for Removal of Trustee on Defendant Gonzalez’s behalf. As discussed in connection with Attorney
Defendants’ SLAPP motion, neither of these actions supply an essential element
of the elder abuse claim, nor could they given that they took place after
Decedent’s death.