Lilley Leong et al v. Leo Leong et al

In The Matter of The Wempe Family 2013 Trust 26PR000128

PETITION FOR ORDER DETERMINING TRUST’S TITLE TO PROPERTY (HEGGSTAD)

TENTATIVE RULING: The matter is CONTINUED to August 27, 2026, at 8:30 a.m. in Dept. A to allow Petitioner to remedy the following issue.

The Notice of Hearing does not comply with the provisions of Probate Code section 851, subdivision (c) in that it does not provide “[a] description of the subject property sufficient to provide adequate notice to any party who may have an interest in the property.” (subd. (c)(1); see Notice of Hearing, § 3.) The Court is, therefore, concerned, that it does not enjoy jurisdiction over the matter. (Diaz v. Prof. Community Management, Inc. (2017) 16 Cal.App.5th 1190, 1204- 05 [“[t]he court lacks jurisdiction to rule on a motion that has not been properly noticed for hearing on the date in question”].)

CIVIL LAW & MOTION CALENDAR – Hon. Cynthia P. Smith, Dept. A (Historic Courthouse) at 8:30 a.m.

Lilley Leong et al v. Leo Leong et al 25CV001672

[1] DEMURRER TO 11TH, 12TH, AND 13TH CAUSES OF ACTION IN THE FIRST AMENDED COMPLAINT

TENTATIVE RULING: The Demurrer is SUSTAINED. Plaintiffs are granted 10 Court days’ leave, from the date of Notice of Entry of order of the Court’s ruling on Defendants Kenneth Leong and Mimi Leong’s Special Motion To Strike First Amended Complaint, to further amend the operative complaint. Such leave, however, is limited to allegations aimed at stating good claims against Khin Kyi Leong for abuse of process and/or defamation. Should Plaintiffs seek leave to amend to attempt to plead around the bar to their malicious prosecution claim (discussed below), they must request oral argument, pursuant to Local Rule 2.9, and provide the Court with an explanation for how they can so-amend.

The moving party failed to include in the notice of this motion proper notice of the Court’s tentative ruling system as required by Local Rule 2.9. Moving party is directed to immediately provide, by telephone call AND email, the missing notice to opposing party/ies forthwith. The requirements for requesting oral argument under Local Rule 2.9 remain in effect. However, the Court may grant belated requests for oral argument or continuance of hearing, made by any party who represents it did not timely receive the required notice, regardless of whether or not moving party is present at the hearing.

Defendants Leo Leong and Khin Kyi Leong (Demurring Defendants) demur, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f), to the Eleventh, Twelfth, and Thirteenth causes of action in the First Amended Complaint (FAC) filed by Plaintiffs Lilley Leong and Anthony Mazy on grounds that the FAC fails to allege facts sufficient to state the subject claims and that the allegations are fatally uncertain as to the subject claims.

A. PRELIMINARY MATTERS

The nature of the parties’ dispute, the allegations of the FAC, and the claims asserted therein are discussed at some length in the Court’s concurrent ruling on Co-Defendant Kenneth Leong and Mimi Leong’s Special Motion to Strike.

The claims at issue on the instant Demurrer are those for malicious prosecution (eleventh), abuse of process (twelfth), and defamation (thirteenth).

B. LEGAL BACKGROUND

A complaint must contain “facts constituting the cause of action.” (Code Civ. Proc., § 425.10, subd. (a)(1).) “The party against whom a complaint or cross-complaint has been filed may object, by demurrer . . . to the pleading on . . . grounds [that] . . . (e) The pleading does not state facts sufficient to constitute a cause of action . . . [and/or] . . . (f) The pleading is uncertain.” (Code Civ. Proc., § 430.10.)

A demurrer on grounds that a plaintiff has failed to state a claim is treated as “admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Such demurrer “‘does not admit . . . facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.’ [Citation.]” (Kenneth Mebane Ranches v. Superior Court (1992) 10 Cal.App.4th 276, 291-292.) The Court must “construe the allegations of a complaint liberally in favor of the pleader.” (Skopp v.

Weaver (1976) 16 Cal.3d 432, 438.) Court must also accept as true facts that may be inferred from those expressly alleged. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1405.) The Court may also consider as grounds for a demurrer any matter that is judicially noticeable under Evidence Code sections 451 or 452. (Code. Civ. Proc., § 430.30, subd. (a).) Because, “[a] demurrer tests only the legal sufficiency of the pleading...the question of plaintiff’s ability to prove the[] allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Comm. on Children’s Television, Inc. v.

Gen. Foods Corp. (1983) 35 Cal.3d 197, 213-14.)

C. LEGAL ANALYSIS

1. The Demurrer is SUSTAINED as to the Eleventh Cause of Action for Malicious Prosecution

It is undisputed that no malicious prosecution claim is asserted by Plaintiffs against Leo Leong. (See FAC at 24:21-23; see also Support Memo at 10:6-10, and Opposition at 3:5-9.) As such, no demurrer, by Leo Leong, lies as to this claim.

Demurring Defendants argue that, as to Khin Kyi Leong, this claim is barred pursuant to the holding in Bidna v. Rosen (1993) 19 Cal.App.4th 27 (Bidna).

A general demurrer will lie “where the complaint has included allegations that clearly disclose some defense or bar to recovery.” (Cryolife, Inc. v. Super. Ct. (2003) 110 Cal.App.4th 1145, 1152.) Where a plaintiff has pled facts that appear to demonstrate an affirmative defense to the claims, they must then “plead around” the defense by alleging facts sufficient to avoid the apparent defense. (See Gentry v. eBay Inc. (2002) 99 Cal.App.4th 816, 825.) However, “‘[a] demurrer based on [an affirmative defense] will not lie where the action may be, but is not necessarily, barred. [Citation.]

In order for the bar . . . to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]’ [Citation.]” (Geneva Towers Ltd. Partnership v. City and County of San Francisco (2003) 29 Cal.4th 769, 781.)

The holding in Bidna is unequivocal and absolute: “no malicious prosecution action may arise out of unsuccessful family law motions or [Orders to Show Cause].” (Bidna v. Rosen (1993) 19 Cal.App.4th 27, 37.) “[A] request for a domestic violence restraining order is a family law motion within the meaning of Bidna.” (S.A. v. Maiden (2014) 229 Cal.App.4th 27, 37 (Maiden).)

The allegations of the FAC clearly premise the Malicious Prosecution Claim on the filing of “two restraining order petitions against Plaintiff Anthony: a Request for Domestic Violence Restraining Order (Case No. 25FL000391) and a Request for Elder or Dependent Adult Abuse Restraining Order (Case No. 25FL000401).” (FAC at ¶ 133.) The Court, therefore, finds that these allegations disclose a bar to recovery under the holdings in Bidna and Maiden.

Plaintiffs urge the Court to find a distinction in the fact that the requests for family law restraining orders alleged in this matter arose under the Elder Abuse and Dependent Adult Civil Protection Act. (See Opposition at 3:12-23.) Plaintiffs fail, however, to suggest how requests for restraining orders under that statutory scheme, brought in a “family law proceeding” differ materially from requests for restraining orders brought under the Family Code such that the Court should not apply the reasoning and precedent of Bidna and Maiden to the instant case.

The Court finds no such meaningful difference. The argument fails to acknowledge that Bidna’s reasoning has been applied in cases barring malicious prosecutions based on unsuccessful civil harassment petitions under Code of Civil Procedure section 527.6 (see Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1571) and unsuccessful workplace harassment petitions under Code of Civil Procedure section 527.8 (see Robinzine v. Vicory (2006) 143 Cal.App.4th 1416 at 1419, 1422–1424). The argument also ignores the fact that several of the opinions relied on by the Bidna court in reaching its holding did not arise under the Family Law, but related to Orders to Show Cause. (See Bidna, supra, 19 Cal.App.4th at 32-34.)

In this context, the Bidna Court stated “[t]he trajectory of the case law now governing malicious prosecution claims arising out of family law proceedings arcs toward one destination: a bright line barring any such claims, no matter how egregious the defendant's conduct in the family law action.” (Id. at 29.)

Based on the foregoing, the Demurrer is SUSTAINED as to the malicious prosecution Claim asserted against Khin Kyi Leong.

Generally, it is an abuse of discretion for a court to deny leave to amend where there is any reasonable possibility that a Plaintiff can state a good cause of action. (Goodman v. Kennedy

(1976) 18 Cal.3d 335, 349.) In this case, the Court finds that the Claim is barred, as a matter of law, based on the nature of the prosecution at issue. For this reason, there appears no possibility that the bar may be “pled around” by amending the FAC. Plaintiffs fail to suggest any possibility through the Opposition. Should Plaintiffs believe that there is a possibility that they can plead around the bar, they may, of course, request oral argument pursuant to Local Rule 2.9, in order to explain such possibility to the Court.

2. The Demurrer is SUSTAINED as to the Twelfth Cause of Action for Abuse of Process

“The common law tort of abuse of process arises when one uses the court’s process for a purpose other than that for which the process was designed. It has been interpreted broadly to encompass the entire range of procedures incident to litigation. The essence of the tort is misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice. To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056–1057 (Rusheen). Internal quotations, citations, and formatting omitted.)

“Abuse of process is not just another name for malicious prosecution. Simply filing or maintaining a lawsuit for an improper purpose (such as might support a malicious prosecution cause of action) is not abuse of process. [Citation.] [¶] Malicious prosecution and abuse of process are distinct. The former concerns a meritless lawsuit (and all the damage it inflicted). The latter concerns the misuse of the tools the law affords litigants once they are in a lawsuit (regardless of whether there was probable cause to commence that lawsuit in the first place). Hence, abuse of process claims typically arise for improper or excessive attachments [citations] or improper use of discovery [citations.].

Here, the Court finds no allegations of misuse of the tools of litigation otherwise available in the “regular conduct” of court proceedings. Rather, Plaintiffs allege in support of the Claim that “Defendants used the restraining order process for an ulterior purpose . . ..” (See FAC at ¶ 141.) The Court does not find the conclusory allegation of paragraph 142, that “Defendants committed willful acts in the use of process not proper in the regular conduct of the proceedings” sufficient to support the Claim. (See Blank v. Kirwan, supra, 39 Cal.3d at 318 [held: demurrer on grounds that a plaintiff has failed to state a claim is treated as “admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law”].)

Through the Opposition, Plaintiffs argue that the “willful acts in the use of process after issuance and outside the orders’ regular scope” involved the Defendants’ “weild[ing]” the Court’s temporary restraining orders. (See Opposition at 7:9-22.) The argument is vague and ambiguous, and the Court is unable to find merit therein. The Court agrees with Demurring Defendants’ argument that “Plaintiffs’ disagreement with the propriety or effect of [the Court’s move-out order] does not transform use of the order into abuse of process.” (Support Memo at 20:5-6.) Moreover, it is not at all clear from the FAC that these allegations form the basis of the Abuse of Process Claim.

Based on the foregoing, the Demurrer is SUSTAINED as to the abuse of process claim. However, the Court finds, from the allegations of the FAC, and Plaintiffs’ arguments, a reasonable possibility that Plaintiffs can amend the FAC to state a good cause of action for abuse of process. The demurrer, as to this claim, is therefore, SUSTAINED WITH LEAVE TO AMEND.

3. The Demurrer is SUSTAINED as to the Thirteenth Cause of Action for Defamation

It is undisputed that no cause of action for defamation is asserted by Plaintiffs against Leo Leong. (See FAC at 27:14-16; see also Support Memo at 20:18-23, and Opposition at 8:15- 17.) As such, no demurrer, by Leo Leong, lies as to this claim.

Demurring Defendants argue that “[t]he claim fails as to Khin Kyi because the FAC does not allege that she made any actionable defamatory statement.” (Support Memo at 21:4-5.) A review of the FAC appears to confirm the assertion. (See FAC at ¶¶ 146 and 149.)

Through the Opposition, Plaintiffs cite to paragraphs 24 and 115 of the FAC. Paragraph 24 alleges only that, on May 24, 2025, “Khin Kyi . . . called the police.” This not an alleged statement of fact by Khin Kyi Leong. Paragraph 115 alleges that “[t]he first two times Defendants called the police they accused Plaintiffs of breaking and entering.” The Court finds the allegation overly vague and ambiguous – regarding what statement was made – to support a defamation claim against Khin Kyi Leong, particularly in light of the fact that the “Defendants” who are alleged to have made the accusation are not identified.

Moreover, the Court finds that the location of the single sentence allegation, vis-à-vis, the section of the FAC dedicated to the defamation claim, renders the claim – as based on that single allegation – fatally unclear. The Court notes that this paragraph is part of the section of the FAC labelled Ninth Cause of Action, Fraudulent Transfer Uniform Voidable Transactions Act (Cal. Civ. Code § 3439.04(a)) (Against Defendants Leo and Khin Kyi. That section spans paragraphs 106 through 121, while the section dedicated to the defamation claim spans paragraphs 145-152. Paragraph 115 is over one page in length. The allegation is contained nearly in the center of it under a heading “Sued or threatened with suit.” FAC at 21:1-2.)

Based on the foregoing, the demurrer is SUSTAINED as to the defamation claim against Kihn Kyi Leong. However, the Court finds a reasonable possibility that Plaintiffs can amend the FAC to state a good cause of action against Khin Kyi Leong for defamation. The demurrer is, therefore, SUSTAINED WITH LEAVE TO AMEND.

[2] DEFENDANTS KENNETH LEONG AND MIMI LEONG’S SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINT

TENTATIVE RULING: Hearing on the matter is CONTINUED to August 20, 2026, at 8:30 a.m. in Dept. A. The Parties are invited to submit additional briefing as discussed below.

A. PRELIMINARY MATTERS

1. Nature of Motion

Defendants Kenneth Leong and Mimi Leong (Moving Defendants) specially move, pursuant to California Code of Civil Procedure section 425.16 (Section 425.16), for an order striking the sixth, seventh, eighth, tenth, eleventh, twelfth, thirteenth, and fourteenth causes of action from the First Amended Complaint (FAC) filed in the action by Plaintiffs Lilley Leong and Anthony Mazy on grounds that the Complaint is a strategic lawsuit against public policy (SLAPP).

2. Nature of Claims

The instant action concerns the ownership, possession, and events arising out of the possession, of certain real property in the City of American Canyon (Residence).

Plaintiffs allege as follows. In 2002, Plaintiff Lilley Leong acquired an undivided 50% interest in the Residence, as joint tenant with her brother Defendant Leo Leong. Beginning in 2023, Lilly Leong communicated to Leo Leong her intention to move into the Residence with her husband, Plaintiff Anthony Mazy. In 2025, Defendant Khin Kyi Leong occupied the Residence.1 She communicated that she did not want Plaintiff Anthony Mazy to move into the Residence, and at times also indicated that she did not want either Plaintiff moving into the Residence. In or about February and March 2025, Khin Kyi Leong, who had been staying in a second bedroom, moved her belongings into the master bedroom of the Residence and installed a lock on the door of that bedroom.

On May 24, 2025, Plaintiffs removed Khin Kyi Leong’s lock and installed one of their own on the master bedroom door. On May 24, 2025, Lilly Leong suffered a heart attack. On May 25, 2025, Plaintiffs sought to move their belongings into the Residence, and found that their lock had been removed by Leo Leong, who had reinstalled Khin Kyi Leong’s lock on the master bedroom door of the Residence. Mr. Mazy again removed the lock at which point Khin Kyi Leong called the police.

Officers from the Napa County Sheriff’s Department responded and initially concluded that the matter was a civil dispute. However, Officer Sinjin Romero of the Department returned to the Residence that evening to conduct additional interviews. During Officer Romero’s conversation with Khin Kyi Leong, she was on a “merged” telephone call with Defendants Kenneth Leong and Mimi Leong.

Lilly Leong was hospitalized from May 27-28, 2025.

The Court takes judicial notice, from matters in its files, that on May 27, 2025, Khin Kyi Leong, appearing in Pro Per, initiated an action captioned Khin Kyi Leong v. Anthony Mazy,

1 Though perhaps not explicitly alleged in the FAC, it appears uncontested that Khin Kyi Leong is the mother of Plaintiff Lilly Leong, and Defendants Leo Leong, Kenneth Leong, and Mimi Leong.

Case No. 25FL000391 (Leong v. Mazy I), in this Court, by filing a Request for Domestic Violence Restraining Orders naming only Mr. Mazy as Respondent. On June 2, 2025, Khin Kyi Leong, appearing in Pro Per, initiated another action captioned Khin Kyi Leong v. Anthony Mazy, Case No. 25FL000401 (Leong v. Mazy II), in this Court, by filing a Request for Elder or Dependent Adult Abuse Restraining Orders, again naming only Mr. Mazy as Respondent.

Plaintiffs allege as follows. Kenneth Leong, who lives in Southern California drafted the respective Requests that commenced the two Family Law matters. The Requests included material false statements.

The Court takes judicial notice that it issued temporary restraining orders (each a TRO), respectively, in Leong v. Mazy I on May 27, 2025, and in Leong v. Mazy II on June 3, 2025, which included orders to stay 100 yards away from Khin Kyi Leong as well as an order for Mr. Mazy to move out of the Residence.

Plaintiffs allege as follows. On June 1, 2025, Leo Leong transferred to Khin Kyi Leong a 3% interest in the Residence.

Mr. Mazy was served with the TROs on June 15, 2025. He underwent spinal surgery on June 20, 2025. As a result of the TROs, he was forced to leave the Residence and was denied access to his medications, medical equipment, and personal belongings.

The Court takes judicial notice that, following a multiday hearing ending on October 23, 2025, the Court issued a Proposed Statement of Decision which declined to issue the restraining orders and terminated the TROs. Eventually the Court’s Statement of Decision confirmed its tentative decision to deny the restraining orders.

Despite having served a formal Notice of Ouster and Demand for Concurrent Possession, pursuant to Civil Code section 843, Defendants have refused and continue to physically block Plaintiffs from possession and use of the Residence.

Based on these allegations and judicial proceedings, Plaintiffs assert 10 claims (each styled a “cause of action”) against Kenneth Leong for: quiet title (fifth), trespass to real property (sixth), conversion of personal property (seventh), trespass to chattels (eighth), violation of the BANE Act (tenth), malicious prosecution (eleventh), abuse of process (twelfth), defamation (thirteenth), and intentional infliction of emotional distress (styled “eleventh cause of action,” but listed as the fourteenth claim). Plaintiffs assert, against Mimi Leong, the counts for quiet title, violation of the BANE Act, malicious prosecution, abuse of process, defamation, and intentional infliction of emotional distress.

3. Claims Implicated by the Instant Motion

The moving papers are inconsistent in identifying the claims at issue on the present Motion. The Notice expressly states that the Moving Defendants “move for an order striking the sixth, seventh, eighth, tenth, eleventh, twelfth, thirteenth, and fourteenth causes of action from [the FAC].” (See Notice of Motion at 2:3-6.) Through the Memorandum filed in support of the

Motion (Support Memo), however, Moving Defendants argue that “[e]ach of the causes of action that [Plaintiffs] assert against defendants Kenneth Leong . . . and Mimi Leong . . . arise out of communications protected under California's anti-SLAPP statute.” (Support Memo at 1:2-4.) Moving Defendants also assert that “[e]ach of Plaintiffs’ causes of action against Kenneth are based on the allegation that he drafted the restraining order applications that resulted in Anthony being barred from the Property for over four months and that he recommended that Leo transfer a 3% ownership interest in the Property to Khin Kyi.” (Id. at 3:22-25.)

It appears from the foregoing, and from the arguments asserted, that Moving Defendants simply overlooked, in drafting the instant Motion, that the Quiet Title Claim is asserted against all defendants to the action. That Count is based on an allegation that “Defendants claim adverse interests hostile to Plaintiffs title and possession rights.” (FAC at ¶ 78.) It is not clear to the Court how such a claim could be based on protected activity, and Moving Defendants fail to persuade the Court, that Plaintiffs’ claim is based on such activity.

Based on the foregoing, the Court understands that the instant motion is not directed at Plaintiffs’ Quiet Title cause of action.

B. LEGAL BACKGROUND

1. Special Motion to Strike a SLAPP

“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.” (Code Civ. Proc., § 425.16, subd. (b)(1).) “The special motion to strike established in section 425.16 may be used to attack a cause of action if (1) the cause of action arises from ‘any act [by the defendant] in furtherance of the person’s right of petition or free speech under the United States or California Constitution,’ and (2) the defendant was exercising his or her right of free speech ‘in connection with a public issue.’ (Citation.)” (Chabak v.

Monroy (2007) 154 Cal.App.4th 1502, 1511.)

“The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Baral v. Schnitt, supra, 1 Cal.5th at p. 384.)

“The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).)” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 67 (Equilon).) “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; (4) or 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.” (§ 425.16, subd. (e).)

“[A] complaint is not a SLAPP suit unless the gravamen of the complaint is that defendants acted wrongfully by engaging in the protected activity.” (Drell v. Cohen (2014) 232 Cal.App.4th 24, 30.) “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 v. Sletten (2002) 29 Cal.4th 82, 92.)

“If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Equilon, supra, 29 Cal.4th at 67.) “[I]n order to establish the requisite probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff need only have ‘‘stated and substantiated a legally sufficient claim.’ [Citations.] ‘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.’’ [Citations.]’ (Navellier, supra, 29 Cal.4th at 88_89.)

Because the burden on the plaintiff is similar to the standard used in determining motions for summary judgment. ‘[t]he showing must be made through ‘competent and admissible evidence.’ [Citations.] Thus, declarations that lack foundation or personal knowledge, or that are argumentative, speculative, impermissible opinion, hearsay, or conclusory are to be disregarded.” (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26 (Gilbert).) “In making this assessment it is ‘the court’s responsibility . . . to accept as true the evidence favorable to the plaintiff . . ..’ [Citation.]

The plaintiff need only establish that his or her claim has ‘minimal merit’ [citation] to avoid being stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

2. Pleading Concepts

In analyzing the instant Motion, the Court is mindful that, “the Legislature used ‘cause of action’ in a particular way in section 425.16(b)(1), targeting only claims that are based on the conduct protected by the statute. Section 425.16 is not concerned with how a complaint is framed, or how the primary right theory might define a cause of action. While an anti-SLAPP motion may challenge any claim for relief founded on allegations of protected activity, it does not reach claims based on unprotected activity. [¶] It follows that a ‘mixed cause of action,’ the term frequently used to designate a count alleging both protected and unprotected activity, is not strictly accurate.

Section 425.16(b)(1) applies only to ‘causes of action’ that arise from allegations of protected speech or petitioning. However, ‘mixed cause of action’ is a term in common usage, and we sometimes employ it for its customary purpose. We also sometimes use ‘cause of action’ in its ordinary sense, to mean a count as pleaded. To avoid confusion, we refer

to the proper subject of a special motion to strike as a ‘claim,’ a term that also appears in section 425.16(b)(1). (Baral v. Schnitt (2016) 1 Cal.5th 376, 382.)

A. THE COURT REQUESTS FURTHER BRIEFING

1. It is Not Clear to the Court that Plaintiffs’ Conspiracy and Aiding and Abetting Theories Were Adequately Pled

Through the moving papers, Moving Defendants analyze their initial burden as though the FAC alleged facts supporting various theories by which each of the Moving Defendants is directly liable to the Plaintiffs. They argue that, “[e]ach of the causes of action that [Plaintiffs] assert against defendants Kenneth Leong . . . and Mimi Leong . . . arise out of communications protected under California's anti-SLAPP statute.” (Support Memo at 1:2-4.)

In Opposition, Plaintiffs contend that, as to most of the causes of action against Mimi Leong, and all of the causes of action against Kenneth Leong, they assert that Moving Defendants are liable under a conspiracy or aiding-and-abetting theory. “The trespass, conversion, trespass-to-chattels, Bane Act, and emotional-distress claims are premised on a course of physical conduct, one the FAC pleads from its opening pages as a single ‘orchestrated. . . scheme’ in which ‘a non-owner guest physically seized control’ of the Property and the family ‘only later sought to legitimize this unlawful occupation through court proceedings,’ a scheme ‘coordinated among multiple family members, including Defendants Kenneth Leong and Mimi Leong’ (FAC 1, 43-46 [sequencing and secret transfer]), seizing and re-locking the Property against its half-owner, Lilley, excluding Plaintiffs Lilley and Anthony, and withholding Anthony's medications, medical equipment, and belongings.” (Opposition at 6:12-22; see also and 13:5-9 [“Should the Court nonetheless reach step two, the conspiracy showing satisfies minimal merit . . .”].) Plaintiffs argue that “Kenneth’s liability for those torts is pleaded on conspiracy and aiding-and-abetting principles, and a conspirator is liable for the torts of his coconspirators committed in furtherance of the common design, whether or not he personally turned the screwdriver.” (Opposition at 6:22-25.)

Moreover, in the respective sections of their Support Memo dedicated to the causes of action for malicious prosecution and abuse of process, Plaintiffs argue that a civil conspiracy or aiding and abetting legal theory is also the basis for asserting these two claims against Moving Defendants. (See, e.g., Support Memo at 7:23-24 [“One who is ‘actively instrumental’ in causing a proceeding to be initiated and maintained is liable for malicious prosecution though not a party to it”]; 10:25-28 [“As to Kenneth and Mimi, who were not physically present, liability for these acts rests on settled imputation doctrines: a conspirator who shares the common plan is liable for co-conspirators’ tortious acts in furtherance of it even though he was a non-acting party [citation], and one who knows a tort is being committed and gives substantial assistance or encouragement is liable as an aider and abettor”].)

The Court reviewed the FAC prior to reviewing the Opposition. By that review, the Court did not understand that Plaintiffs were asserting claims against Kenneth and Mimi on a conspiracy or aiding and abetting theory. The Court remains concerned that the allegations of the FAC are insufficient to support a finding of “the formation and operation of the conspiracy.” As

Moving Defendants note in their Reply, “the FAC has no references to ‘conspiracy’ or ‘aiding and-abetting’ at all.” (Reply at 5:11-12.) As suggested above, a review of the allegations of the FAC do not make clear that the claims against Kenneth Leong and/or Mimi Leong are premised on a civil conspiracy or aiding and abetting theory of liability. (See Doheny Park Terrace Homeowners Association., Inc. v. Truck Insurance Exchange (2005) 132 Cal.App.4th 1076, 1098-1099[“a plaintiff is required . . . to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action”].)

However, neither party provided the Court with any discussion of the elements required to be pled and proved to prevail on a conspiracy or aiding and abetting theory.

2. Moving Defendants’ Failure to Carry their Initial Burden May be Due to the Lack of Clarity of the FAC

The Court has wrestled with the question of how, exactly, to analyze Moving Defendants’ initial burden in light of Plaintiffs’ arguments regarding a conspiracy or aiding and abetting theory of liability.

Each of the nine claims against Kenneth at issue in the instant motion are based, at least in part, on allegations that he: (1) gave false information to police officers; (2) “instigated and directed the filing of restraining order applications containing false allegations,” and/or otherwise actively participated in the filing and prosecution of Leong v. Mazy I and II; and (3) recommended to Leo Leong that Leo transfer an interest in the Residence to Khin Kyi Leong. (See FAC at ¶¶ 26-34, 44, 87, 93, 125, 142, 149, 155.) Similarly, the remaining five claims asserted against Mimi Leong are based on allegations that she gave false information to police officers and/or actively participated in the filing and prosecution of Leong v. Mazy I and II. (See FAC at ¶¶ 26-34, 125-127, 133, 142, 146, and 155.)

Through the moving papers, Plaintiffs cite to evidence of three acts by Moving Defendants in support of their civil conspiracy, or aiding and abetting, theory of liability: (1) the telephone call during Officer Romero’s investigation (see FAC at ¶¶ 26-27); (2) Kenneth’s assistance in completing the Request for Order forms that, respectively, initiated Leong v. Mazy I and II (see id. at ¶¶ 29-30); and (3) Kenneth Leong’s recommendation to Leo Leong that Leo transfer 3% interest to Defendant Khin Kyi (see id. at ¶ 44).

The parties appear to concede that allegations that Kenneth Leong recommended that Leo Leong transfer 3% interest to Defendant Khin Kyi Leong do not constitute protected activity.

It appears to the Court that communications with Officer Romero and assistance with the preparation and prosecution of Leong v. Mazy I and II are activities that fall within the definition of protected activities under the anti-SLAPP statute.2 (See Section 425.16, subds. (e)(1) and (2); see also Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 [“the

2 As the Court seeks additional briefing on these matters, nothing herein is intended as communicating a finding of fact or conclusion of law. Rather the instant discussion is provided only to guide the parties in providing further briefing to the Court.

constitutional right to petition . . . includes the basic act of filing litigation or otherwise seeking administrative action” (internal quotations omitted)], Ludwig v. Super. Ct. (1995) 37 Cal.App.4th 8, 18 [held: one who “supports and encourages the filing of a lawsuit” engages in protected activity], and Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1511 [“[defendant’s] statements to the police clearly arose from protected activity”], .)

If Plaintiffs’ claims against Moving Defendants were based on theories of direct liability, then the forgoing allegations would appear to make one or more of those claims so called “mixed cause(s) of action.”

For purposes of anti-SLAPP analysis, a “so-called ‘mixed cause of action’...combines allegations of activity protected by the statute with allegations of unprotected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 381-82 (Baral).) A special motion to strike may properly be granted as against the claims based on allegations of protected activity, even though such ruling does not dispose of an entire cause of action. (See ibid.)

However, for purposes of analyzing a mixed cause of action, caselaw recognizes two distinct types of anti-SLAPP Motion. “In [Taus v. Loftus (2007) 40 Cal.4th 683 (Taus)], the anti- SLAPP movant sought to strike particular kinds of alleged conduct, while in [Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811 (Oasis)] the anti-SLAPP movant moved to strike the entire complaint.” (Young v. Midland Funding LLC (2023) 91 Cal.App.5th 63, 98 (Young).) Where a party does not directly make a request for the narrower form of relief (striking of specific allegations) in its notice of motion or in the motion itself, then an anti-SLAPP motion will be denied if the movant-defendant fails to adequately dissect each of the . . . legal theories presented, element-by-element, so that the plaintiff receives notice of exactly what elements of which legal theories the defendant claims were based on protected conduct and lacked minimal merit.” (See ibid.) “If a cause of action contains multiple claims and a moving party fails to identify how the speech or conduct underlying some of those claims is protected activity, it will not carry its first-step burden as to those claims.” (Bonni v.

St. Joseph Health System (2021) 11 Cal.5th 995, 1011.) “Baral requires courts to ‘analyze each claim for relief – each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action – to determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion.’ [Citations.] As applied in Bonni and other cases [citations], this analysis focuses factually on specific ‘acts,’ ‘activities,’ or ‘conduct’ that make up the elements of a pleaded claim. (Young v.

Midland Funding LLC (2023) 91 Cal.App.5th 63, 97.)

Moving Defendants clearly failed, here, “to adequately dissect each of the . . . legal theories presented, element-by-element, so that the plaintiff receives notice of exactly what elements of which legal theories the defendant claims were based on protected conduct and lacked minimal merit.” (Young, supra, 91 Cal.App.5th at 98.) However, this failure may well be attributable to the lack of clarity in the FAC regarding Plaintiffs’ conspiracy or aiding and abetting theory of liability. As this theory was only clarified through the Opposition, the Court finds that the interests of justice compel granting Moving Defendants the opportunity to undertake the element-by-element analysis required pursuant to the holding in Young.

3. The Impact of the Bar on Malicious Prosecution Claims Arising from Family Law Restraining Order Procedures on Plaintiffs’ Conspiracy Based Claims for Malicious Prosecution Against Kenneth Leong and Mimi Leong

As discussed in the Court’s concurrent ruling on co-defendants Kinh Kyi Leong and Leo Leong’s Demurrer, the holding in Bidna is unequivocal and absolute: “no malicious prosecution action may arise out of unsuccessful family law motions or [Orders to Show Cause].” (Bidna v. Rosen (1993) 19 Cal.App.4th 27, 37.) “[A] request for a domestic violence restraining order is a family law motion within the meaning of Bidna.” (S.A. v. Maiden (2014) 229 Cal.App.4th 27, 37 (Maiden).)

It appears to the Court, from Plaintiffs’ Opposition, that it seeks to hold Kenneth Leong and Mimi Leong liable under claims that they were co-conspirators in Kinh Kyi Leong’s prosecution of Leong v. Mazy I and II. The question arises: if an action for malicious prosecution may not be maintained against Kinh Kyi Leong based on the holdings in Bidna and Maiden, may Plaintiffs maintain an action against Kenneth Leong and Mimi Leong based on a civil conspiracy to aid and abet Kinh Kyi Leong in prosecuting those actions.

4. Plaintiffs Request for Discovery

Finally, Plaintiffs make the following request through their Opposition brief. “If the Court concludes Plaintiffs’ showing is deficient on any element as to any surviving claim, Plaintiffs request a continuance and leave to conduct specified discovery for good cause: the February-October 2025 communications among Kenneth, Mimi, Leo, and Khin Kyi concerning Plaintiffs’ occupancy, the restraining-order applications, and the 3% transfer, all of which is in Defendants' exclusive possession.” (Opposition at 13:20-25.)

Plaintiffs cite to Section 425.16, subdivision (g). It provides that, “[a]ll discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.” (Ibid.)

Plaintiffs have not made the request by “noticed motion.” It is, therefore, not properly before the Court.

Moreover, Plaintiffs fail to make any showing of good cause in support of the request. “In enacting the anti-SLAPP statute, the Legislature set up 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.) The Court does not read the statute as providing for a continuance of the hearing on the anti-SLAPP motion to permit a plaintiff to conduct discovery in search of support for claims based on protected activities. Plaintiffs cite to no other authority in support of the request. Finally, the Court notes that Plaintiffs filed their initial complaint in the action on August 18, 2025, and the FAC on April 17, 2026. Plaintiffs fail to suggest what discovery efforts

they have undertaken to date, and fail to suggest any reason why discovery into the subjects identified could not have been conducted earlier.

5. Leave to File Additional Briefs

Based on the foregoing, Moving Defendants are granted leave to serve and file, no later than July 30, 2026, a Supplemental Memorandum in support of the Motion, of no more than 16 pages, limited to the issues set forth above. Plaintiffs are granted leave to serve and file, no later than August 6, 2026, a Supplemental Opposition, of no more than 16 pages, limited to matters raised in Moving Defendants’ Supplemental Memorandum and/or the issues set forth above. Moving Defendants are granted leave to serve and file, no later than August 12, 2026, a Supplemental Reply, of no more than 7 pages and limited to those matters raised in Plaintiffs’ Supplemental Opposition.

[3] MOTION FOR 1) INTERLOCUTORY JUDGMENT OF PETITION AND 2) APPOINTMENT OF REFEREE

TENTATIVE RULING: The motion is DENIED WITHOUT PREJUDICE.

The moving party failed to include in the notice of this motion proper notice of the Court’s tentative ruling system as required by Local Rule 2.9. Moving party is directed to immediately provide, by telephone call AND email, the missing notice to opposing party/ies forthwith. The requirements for requesting oral argument under Local Rule 2.9 remain in effect. However, the Court may grant belated requests for oral argument or continuance of hearing, made by any party who represents it did not timely receive the required notice, regardless of whether or not moving party is present at the hearing.

Defendants Leo Leong and Khin Kyi Leong move, pursuant to Code of Civil Procedure 438, subdivision (c)(1)(a), for 1) an interlocutory judgment of partition and 2) appointment of a partition referee.

“If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition.” (§ 872.720, subd. (a).) The Court may not decree a partition prior to determining the parties’ respective interests in the property. (Withington v. Collins (1943) 60 Cal.App.2d 110, 115.)

The Court is not in a position to find that Plaintiffs are entitled to partition, however, because on June 18, 2026, Leo Leong and Khin Kyi Leong filed an Answer to the operative First Amended Complaint denying “generally and specifically each and every allegation of Plaintiffs’ first amended complaint . . . including each and every purported cause of action against Defendants.”

Thus, every allegation in Plaintiffs’ partition claim, including Plaintiffs’ right to partition, the parties’ ownership percentages, and the form of partition, is controverted. Moving

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