Judge Teresa A. Beaudet, Case Number: 23STCV24945, Date: 2024-04-16 Tentative Ruling

Plaintiff Anthony R. Saenz (“Anthony Saenz”) filed this action on October 12, 2023 against Defendants Emma Saenz, Elliott Escrow Inc., and Kimberly Elliot. The Complaint alleges causes of action for (1) breach of oral and/or implied contract, (2) breach of contract,

(3) common counts, (4) breach of fiduciary duty, (5) conversion of money, (6) violation of Penal Code section 496, (7) breach of contract, and (8) breach of fiduciary duty.

In the Complaint, Anthony Saenz alleges that he was an owner in joint tenancy of residential real property located at 586 Shady Dell, Crest line, CA 92325 (the “Premises”) with Emma Saenz (Anthony Saenz’s mother). (Compl., ¶ 1.) Anthony Saenz alleges that from September 11, 2017 to June 2, 2022, Emma Saenz and Anthony Saenz owned the Premises as joint tenants with a right of survivorship. (Compl., ¶ 10.)

Anthony Saenz alleges that “[o]n or about May 23, 2022, [Emma Saenz] and [Anthony Saenz] entered into a California residential purchase agreement with joint escrow instructions, hereinafter the ‘CARPA’, whereby Jennifer Emily Orvis and Phillip Andrew Orvis would purchase the PREMISES from [Anthony Saenz] and defendant Emma Saenz, and whereby [Anthony Saenz] and defendant Emma Saenz would sell the PREMISES to Jennifer Emily Orvis and Phillip Andrew Orvis.” (Compl., ¶ 11.) “Defendant Elliot Escrow, Inc. was selected by the parties to act as the escrow holder and agent for the sales transaction and closing.” (Compl., ¶ 13.)

Anthony Saenz alleges that “[p]ursuant to the sellers’ closing statement, the amount due seller at close was $282,189.15.” (Compl., ¶ 14.) “However, rather than issue two checks (one to be paid to the order of [Anthony Saenz] and one to be paid to the order of Emma Saenz) for the total net sales proceeds, defendant Elliot Escrow, Inc., instead issued a single check for $282,189.15 in the name of defendant Emma Saenz…” (Compl., ¶ 15.) Anthony Saenz alleges that “Emma Saenz contacted defendant Elliot Escrow Inc., a day after the close, told defendants Elliot Escrow Inc….that…Emma Saenz would come get the check, had the check issued only in her name, and upon getting the check immediately deposited it to her own personal bank account and did not provide any of the net proceeds of the sale to plaintiff.” (Compl., ¶ 17.)

On December 27, 2023, Elliot Escrow, Inc. filed a Cross-Complaint against Emma Saenz, alleging seven causes of action.

On January 26, 2024, Emma Saenz filed a Cross-Complaint against Anthony Saenz, alleging causes of action for (1) elder financial abuse, (2) breach of oral contract, and (3) declaratory relief.

The Court grants Anthony Saenz’s request for judicial notice filed in support of the motion. The Court denies Anthony Saenz’s request for judicial notice filed in support of the reply. The Court notes that “[t]he general rule of motion practice…is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.)

The Court rules on Anthony Saenz’s evidentiary objections to the Declaration of Emma Saenz as follows:

Objection No. 1: sustained as to “[t]o the best of my knowledge, Tony hasn’t held a real job for over a decade,” overruled as to the remainder.

Objection No. 4: overruled as to “I own another cabin in Crestline, at 161 Wylerhorn (the ‘Wylerhorn property’), and I put that property in joint tenancy with my other son, Martin, under the same arrangement four years earlier. A true and correct copy of that deed is attached here as Exhibit E,” sustained as to the remainder.

Objection No. 5: sustained as to “because he wasn’t the real owner of the property,” and as to “Tony didn’t.”

Objection No. 6: sustained as to the second sentence, overruled as to the remainder.

Objection No. 7: overruled as to “Exhibit 2 to Tony’s Motion is an email from Rita Rhilinger at Mountain Property Management,” and “[t]he email from Rita is addressed to me on the ‘To’ line, and Tony is bcc’d on the email,” sustained as to the remainder.

Objection No. 8: sustained as to the last sentence, overruled as to the remainder.

Objection No. 10: sustained as to “But I’m nearly certain that both of those bills are for the Wylerhorn property, where Tony was living at the time, not the Shady Dell property,” overruled as to the remainder.

Objection No. 13: sustained as to “[t]hose statements don’t prove that he received any of the money from the property, that he paid any of its expenses, or that he was a true owner,” overruled as to the remainder.

Objection No. 21: sustained as to the second and third sentences, overruled as to the remainder.

The anti-SLAPP statute is “a mechanism through which complaints that arise from the exercise of free speech rights can be evaluated at an early stage of the litigation process and resolved expeditiously.” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [internal quotations omitted].) Courts use a two-step process for determining whether an action is a strategic lawsuit against public participation, or a SLAPP. First, the court determines whether the defendant has established that the challenged claim arises from protected speech. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If such a showing has been made, the court “determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Ibid.)

“[T]he only thing the defendant needs to establish to invoke the protection of the SLAPP statute is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of her right of petition or free speech.” (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 307.)

An act in furtherance of a person’s right of petition or free speech includes the following:

“(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.” (Code Civ. Proc., § 425.16, subd. (e).)

In determining whether a cause of action arises from protected conduct, the court focuses on “the allegedly wrongful and injury-producing conduct that provides the foundation for the claims.” (Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 490-491.) “[T]he critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [emphasis in original].) In making this determination, the Court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Ibid.) “The anti-SLAPP statute should be broadly construed and a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a garden variety tort claim when in fact the liability claim is predicated on protected speech or conduct.” (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519 [internal citations omitted].)

In her Cross-Complaint, Emma Saenz alleges that she “is approximately 84 years old,” and is “the mother of plaintiff Anthony Saenz.” (Cross-Compl., ¶ 4.) In October 2016, Emma Saenz purchased the home located at 586 Shady Dell in Crestline, CA for $105,000 (the “Shady Dell property”). (Cross-Compl., ¶ 5.) Emma Saenz paid for the property outright from her own funds. (Cross-Compl., ¶ 5.)

“In September 2017, Ms. Saenz decided that if she were to pass away, she wanted the Shady Dell property to pass to her son, Anthony. She knew that if she put the Shady Dell property in joint tenancy with Anthony, he would automatically become the owner of the property upon her death. Ms. Saenz asked Anthony whether he would want to inherit that property at her death, Anthony said yes, and so she signed a deed transferring legal title to the Shady Dell property from herself, as an unmarried woman, to herself and Anthony as joint tenants with right of survivorship.” (Cross-Compl., ¶ 6.)

“In or about July 2020, Anthony’s girlfriend, Lisa Vu, bought a property at 28866 Banff Drive in Lake Arrowhead, California with her mother, Mai Thi Dao (the ‘Banff property’).” (Cross-Compl., ¶ 8.) “In or about mid-2021, Ms. Vu started asking Ms. Saenz if she wanted to pay off the loan on the Banff property and co-own it with her. Ms. Vu said that if Ms. Saenz paid off the loan, Ms. Dao would surrender her interest in the property so that Ms. Saenz would become an equal co-owner of the property with Ms. Vu.” (Cross-Compl., ¶ 9.) “Emma eventually agreed. Emma and Ms. Vu decided to form 28866 Banff Dr LLC, with Lisa Vu as the manager of the entity, and title to the Banff property was to be transferred to the LLC. Between November 2021 and February 2022, Emma paid approximately $230,000 to Lisa Vu in mortgage payments and a final mortgage payoff. Ms. Dao conveyed her interest in the Banff property to Lisa Vu. Lisa Vu, in turn, executed a grant deed transferring the Banff property to the LLC, but unbeknownst to Emma, Ms. Vu never recorded that grant deed. Instead, Ms. Vu prepared a new deed transferring the Banff property to Ms. Vu’s family trust and recorded that.” (Cross-Compl., ¶ 10.)

“In May 2022, Ms. Saenz decided to sell the Shady Dell property.” (Cross-Compl., ¶ 11.) “Ms. Saenz told Anthony that she wanted to sell Shady Dell. Anthony had no objection to that. They both signed documents to list the property for sale.” (Cross-Compl., ¶ 12.) “The Shady Dell property went under contract right away and escrow closed in late June 2022. Anthony signed all of the escrow documents during the process, including the ‘Irrevocable Instructions for Net Proceeds’ authorizing the proceeds to be disbursed via check, and for Ms. Saenz to be called when the check was available so that she could pick it up.” (Cross-Compl., ¶ 12)

The Cross-Complaint alleges that “Anthony knew full well that his mother was going to be the only person receiving the proceeds from the sale. He had paid no money toward the property and was never intended to be an equitable owner of the property, at least not until after Ms. Saenz’s death. He and his mother had an oral agreement that she would receive all of the funds from the sale. Ms. Saenz picked up the check, deposited the proceeds in her account as she and Anthony both had intended, and Anthony never complained about it.” (Cross-Compl., ¶ 12.)

“Ms. Saenz started looking into the purchase of a boat dock, and it was then that she discovered that Lisa Vu had never recorded the deed transferring the Banff property to the LLC.” (Cross-Compl., ¶13.) “On October 24, 2022, Ms. Saenz sued Lisa Vu for fraud, breach of fiduciary duty, embezzlement, elder abuse, and declaratory relief. By December 13, 2022, Lisa Vu…agreed to settle by selling the property and paying Ms. Saenz $265,000.” (Cross-Compl., ¶ 14.) The Cross-Complaint alleges that “after the prior litigation settled and Ms. Vu paid Ms. Saenz the amounts owed under the settlement agreement, Anthony Saenz must have dreamed up a new way to involve his mother in litigation to see if he could wrest more money out of her.” (Cross-Compl., ¶ 15.)

In the motion, Anthony Saenz asserts that Emma Saenz’s Cross-Complaint is subject to a special motion to strike because “the cross-claims arise only because plaintiff’s [sic] filed suit against defendant.” (Mot. at p. 8:7-8.) Anthony Saenz asserts that “by her cross-complaint, defendant seeks to punish plaintiff for his exercise of the right of petition.” (Mot. at p. 8:17-18.)

Anthony Saenz points to the following allegations in support of these assertions:

(1) “[t]his action is merely a new form of elder financial abuse committed against Ms. Saenz,” (2) “Mr. Saenz knows that his lawsuit is meritless,” (3) “the Court should find in favor of Ms. Saenz for her claims of financial elder abuse and award her damages, including attorneys’ fees, for having to defend herself against her son’s meritless lawsuit,” (4) “Anthony Saenz’s frivolous lawsuit against his mother is an attempt to take part of the proceeds from the sale of his mother’s property from her,” (5) “[b]y refusing to dismiss his lawsuit, even when presented with proof that his mother paid for everything related to the Shady Dell property, Mr. Saenz is forcing his mother to spend money to defend herself against his unmeritorious lawsuit, which constitutes elder financial abuse,” and (6) “[n]ow Mr. Saenz is suing his mother, claiming an interest in the property. That is a breach of their oral agreement regarding the property.” (Cross-Compl., ¶¶ 16, 18, 20, 25.)

In the opposition, Emma Saenz argues that her “cross-complaint is based, in part, on the fact that [Anthony Saenz] has sued her to try to gain property that he is not entitled to, but Emma also alleges a history of events that form the basis of her claims before [Anthony Saenz] filed his complaint.” (Opp’n at p. viii:4-6.)[1]

In the first cause of action for elder financial abuse, Emma Saenz alleges that “Anthony Saenz’s frivolous lawsuit against his mother is an attempt to take part of the proceeds from the sale of his mother’s property from her. He knows that he never equitably owned any portion of the property. By refusing to dismiss his lawsuit, even when presented with proof that his mother paid for everything related to the Shady Dell property, Mr. Saenz is forcing his mother to spend money to defend herself against his unmeritorious lawsuit, which constitutes elder financial abuse.” (Cross-Compl., ¶ 20, emphasis added.) The Court agrees with Anthony Saenz that this cause of action arises from the filing of his Complaint in the instant action. As discussed, as used in Code of Civil Procedure section 425.16, an “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, inter alia, “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.” (Code Civ. Proc., § 425.16, subd. (e)(1).)[2]

In the second cause of action for breach of oral contract, Emma Saenz alleges that “Mr. Saenz and Ms. Saenz both had an understanding, based on their oral conversations, that the Shady Dell property was put into joint tenancy merely as an estate planning vehicle, so that when Ms. Saenz passed away, assuming she still owned the property, Mr. Saenz could inherit it from her. Ms. Saenz paid all expenses for the property, including the entire purchase price for the property. The oral understanding between them was always that Ms. Saenz would own the property and pay for all of the expenses relating to it, and if she still owned the property when she died, Mr. Saenz would inherit it. But if Ms. Saenz decided she wanted to do something else with the property later, the understanding was that her son wouldn’t contest that, since he had never contributed anything to the property.” (Cross-Compl., ¶ 23.)

Emma Saenz further alleges in support of the second cause of action that “[w]hen Ms. Saenz decided to sell the property later, her son willingly surrendered his title interest in the property, consistent with their oral agreement. Mr. Saenz agreed to sign the escrow paperwork and to permit his mother to retrieve the sales proceeds and to deposit them in her own bank account consistent with that agreement…Now Mr. Saenz is suing his mother, claiming an interest in the property. That is a breach of their oral agreement regarding the property…” (Cross-Compl., ¶¶ 24, 25, emphasis added.) The Court agrees with Anthony Saenz that the second cause of action also arises from Anthony Saenz’s filing of the Complaint in the instant action.

In the third cause of action for declaratory relief, Emma Saenz alleges that “[a]n actual controversy has arisen, and now exists between Cross-Complainant and Cross-Defendants, and each of them, concerning their rights and duties, in that Cross-Complainant contends that she is entitled to declaratory relief that she was the sole equitable owner of the Shady Dell property, and the sole person entitled to receive the proceeds from the sale of that property.” (Cross-Compl., ¶ 27.) The Court does not find that Anthony Saenz has shown that the declaratory relief cause of action arises from the filing of Anthony Saenz’s Complaint in the instant action. In addition, Anthony Saenz’s arguments on this point do not appear to reference the allegations of the declaratory relief cause of action. (See Mot. at p. 8:7-22.)

Based on the foregoing, the Court finds that Anthony Saenz has met his burden of demonstrating that the first and second causes of action of Emma Saenz’s Cross-Complaint arise from protected activity. The Court does not find that Anthony Saenz has met his burden of demonstrating that the third cause of action of the Cross-Complaint arises from protected activity. Therefore, the Court finds that the burden now shifts to Emma Saenz on prong two with respect to the first and second causes of action of the Cross-Complaint.

“[P]laintiff 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.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476 [internal quotations omitted].) In making the prong two determination, “the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2).) “The court does not, however, weigh [defendant’s] evidence against the plaintiff’s, in terms of either credibility or persuasiveness. Rather, the defendant’s evidence is considered with a view toward whether it defeats the plaintiff’s showing as a matter of law, such as by establishing a defense or the absence of a necessary element.” (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.)

Anthony Saenz argues, inter alia, that “all of [Emma Saenz’s] cross-claims are barred by the litigation privilege.” (Mot. at p. 14:18-19.) The Court notes that “[t]he litigation privilege is also relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.)

Civil Code section 47, subdivision (b) states: “[a] privileged publication or broadcast is one made . . . [i]n 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.”

In Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057, cited by Anthony Saenz, the California Supreme Court noted that “[a]lthough originally enacted with reference to defamation, the privilege is now held applicable to any communication, whether or not it amounts to a publication, and all torts except malicious prosecution. Further, it applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved…The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. Thus, communications with some relation to judicial proceedings are absolutely immune from tort liability by the litigation privilege.” ([internal quotations and citations omitted].) “Pleadings and process in a case are generally viewed as privileged communications.” (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 770.)

Anthony Saenz asserts that his “complaint, its allegations and its filing and prosecution are all communications and/or necessarily related acts protected by the litigation privilege…Therefore, plaintiff has absolute immunity against each of defendant’s cross-claims. For these reasons, defendant cannot prevail on her cross-complaint or cross-claims.” (Mot. at p. 15:3-6.)

In the opposition, Emma Saenz contends that “[t]he litigation privilege does not bar all of Emma’s claims. As described above, the facts underpinning many of her claims are rooted in a history that arose before the commencement of litigation. The Court should not ignore those other facts and focus solely on the harm Emma claims as a result of Tony’s frivolous complaint against her.” (Opp’n at p. x:19-22.)

However, as discussed, the Court agrees with Anthony Saenz that the first and second causes of action of Emma Saenz’s Cross-Complaint arise from the filing of Anthony Saenz’s Complaint in the instant action. As set forth above, Emma Saenz alleges in the elder financial abuse cause of action that “[b]y refusing to dismiss his lawsuit, even when presented with proof that his mother paid for everything related to the Shady Dell property, Mr. Saenz is forcing his mother to spend money to defend herself against his unmeritorious lawsuit, which constitutes elder financial abuse.” (Cross-Compl., ¶ 20.) In the breach of contract cause of action, Emma Saenz alleges that “Mr. Saenz is suing his mother, claiming an interest in the property. That is a breach of their oral agreement regarding the property.” (Cross-Compl., ¶ 25.)

Based on the foregoing, the Court finds that Emma Saenz has failed to establish a probability of prevailing on her first cause of action for elder financial abuse and her second cause of action for breach of oral contract.

Based on the foregoing, the Court grants Anthony Saenz’s special motion to strike as to the first and second causes of action of Emma Saenz’s Cross-Complaint. The Court denies Anthony Saenz’s special motion to strike as to the third cause of action of Emma Saenz’s Cross-Complaint.

Because of the mixed outcome of the anti-SLAPP motion, the Court reserves its determination on the question of attorney’s fees pending a noticed motion on the issue of which party is the prevailing party and what attorney’s fees and costs are recoverable.

[1]The opposition then discusses the following references to the Cross-Complaint: “¶ 6–7 (describing oral agreement that Tony’s interest in the property was only to be a transfer upon death); ¶¶ 10, 13 (describing Tony and his girlfriend kicking Emma out of the Banff property when she complained about not being on title after paying $230,000 for a one-half interest in the property); ¶ 16 (“This action is merely a new form of elder financial abuse committed against Ms. Saenz.”); ¶ 17 (describing how Emma has paid for a substantial amount of Tony’s expenses, including a boat that he later sold and kept the proceeds from).” (Opp’n at p. viii:7-13.)

[2]Pursuant to Code of Civil Procedure section 425.16, subdivision (b)(1), “[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.”

ANTHONY R. SAENZ, Plaintiff, vs. EMMA SAENZ, et al. Defendants.	Case No.:	23STCV24945
	Hearing Date:	April 16, 2024
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: PLAINTIFF’S SPECIAL MOTION TO STRIKE CROSS-COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16 OF DEFENDANT EMMA SAENZ; REQUEST FOR AWARD OF ATTORNEY FEES AND COSTS
AND RELATED CROSS-ACTIONS

Superior Court of California

County of Los Angeles

Department 50