Vincent Lara vs. Alexis Paige Lewis

34-2023-00336808-CU-FR-GDS: Vincent Lara vs. Alexis Paige Lewis 03/12/2024 Hearing on Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion) in Department 54

Tentative Ruling

Plaintiffs/Cross-Defendants Vincent Lara and Joseph Lara’s (“Joseph”) (collectively “the Laras”) special motion to strike Defendant/Cross-Complainant Alexis Lewis’ (“Lewis”) cross-complaint is ruled upon as follows.

I. Overview

In their complaint, the Laras allege that Lewis wrongfully changed the beneficiaries of their father’s retirement account (the “Account”) held by Nationwide Life and Annuity Insurance Company (“Nationwide”). The Laras’ father died on April 27, 2022. The Laras allege that the beneficiary designation for the Account should be changed back to the designation that existed before Lewis allegedly altered it. The Laras filed their complaint on March 23, 2023.

In her cross-complaint, Lewis asserts an “intentional tort” cause of action against the Laras. Lewis alleges:

ALEXIS LEWIS was a named beneficiary of an annuity contract issued by Nationwide to Alan K. Lara, plaintiffs’ father, who died on April 27, 2022. Cross-complainant is informed and believes and thereon alleges that the LARAS were aware of the contract that named Alexis Lewis as a beneficiary. Plaintiff is informed and believes and thereon alleges that the Laras disputed that Alexis Lewis was a beneficiary of the Nationwide annuity contract.

Cross-complainant is informed and believes and thereon alleges that the Laras took steps and made false representations to Nationwide to stop NATIONWIDE from distributing annuity benefits to Alexis Lewis that are called for in the annuity contract.

As a result of Plaintiffs’ wrongful actions, Nationwide has refused and continues to refuse to distribute the annuity benefits to Alexis Lewis.

(Judicial Council Cross-Complaint, ¶ IT-1.)

The Laras’ request for judicial notice is granted.

The Laras move to strike Lewis’ cross-complaint on the ground that it implicates the Laras’ First Amendment rights.

34-2023-00336808-CU-FR-GDS: Vincent Lara vs. Alexis Paige Lewis 03/12/2024 Hearing on Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion) in Department 54

II.

Legal Standard

The California legislature enacted Code of Civil Procedure section 425.16, known as the anti-SLAPP statute, to provide a procedural remedy to dispose of lawsuits and causes of action that are brought to chill the valid exercise of the constitutional rights to free

speech and to petition the government for redress of grievances. (See Rusheen v Cohen (2006) 37 Cal.4th 1048, 1055-1056.) “The analysis of an anti-SLAPP motion thus involves two steps. First, the court decides whether the defendant moving to strike has made a threshold showing that the challenged cause of action is one “arising from” protected activity. If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim. Only a cause of action that satisfies both prongs of the anti-SLAPP statute - i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820 [citations omitted].)

“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.” (Baral v. Schnitt (2016) 1 Cal. 5th 376, 382.) For a mixed claim case, involving both allegations of potentially protected and unprotected activity, “[a]t the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage.

If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken.

Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1165, citing Baral v. Schnitt, supra, 1 Cal. 5th at 396.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336808-CU-FR-GDS: Vincent Lara vs. Alexis Paige Lewis 03/12/2024 Hearing on Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion) in Department 54

III. Arising from Protected Activity

In determining whether the Laras met their burden, the Court considers not only the pleadings, but also the “supporting and opposing affidavits stating the facts which the liability or defense is based.” (Code Civ. Proc. § 425.16(b)(2).) “In deciding whether the ‘arising from’ requirement is met, a court considers the ‘pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) As noted by relevant authority, it is crucial to look past the allegations in the complaint and to consider affidavits in order to obtain the complete picture of the plaintiff’s claims. (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 630.)

According to the Laras, Lewis’ intentional tort cause of action arises out of protected activity pursuant to Code of Civil Procedure section 425.16(e)(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.” The Laras contend that all their statements made to Nationwide were made “in anticipation of litigation contemplated in good faith and under serious consideration.” (Motion, 4:2-3.)

A prelitigation statement falls within Code of Civil Procedure section 425.16 (e)(2) if the statement “‘concern[s] the subject of the dispute’ and is made ‘in anticipation of litigation “contemplated in good faith and under serious consideration”‘ [citation].” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268; Rohde v. Wolf (2007) 154 Cal.App.4th 28, 37.)

Joseph Lara (an attorney) provides his declaration in support of the motion which includes his communications with Nationwide in which he avers that the statements “were made in my anticipation of litigation between my brother, Vincent Lara, and I on the one hand, and Lewis, on the other hand.” (Declaration of Joseph Lara (“Lara Decl.”), ¶ 4.)

On May 9, 2022, Joseph sent an email in response to Nationwide’s email stating “[t]hank you also for confirming that the 8/11/21 beneficiary change is under dispute and that none of the money in the account in question will be distributed. My brother and I intend to file a lawsuit against Ms. Lewis in an effort to rescind her beneficiary designation.” (Lara Decl., Ex. A, NATIONWIDE000799.)

On May 25, 2022, Joseph, on his own behalf and on behalf of his brother, sent a letter to Nationwide stating, in part, “[w]e are in the process of attempting to negotiate a

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336808-CU-FR-GDS: Vincent Lara vs. Alexis Paige Lewis 03/12/2024 Hearing on Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion) in Department 54

settlement with Ms. Lewis, but the prospects look dire. As such, we intend to file a civil lawsuit against her for intentional interference with expected inheritance and declaratory relief. A copy of the civil complaint is attached. If we can resolve the dispute, we will, of course, let you know.” (Lara Decl., Ex. B, NATIONWIDE000851.) Joseph also included a copy of the complaint which they intended to file. (Id.)

There are also email communications among Joseph, Nationwide and Lewis’ former counsel, ranging between December 12, 2022 and March 9, 2023, in which they discuss a proposed disbursement agreement, and whether Nationwide should pursue further litigation from its end. (Lara Decl., Ex. C.)

In opposition, Lewis contends that her cross-complaint is founded in the Laras’ interference with her expected receipt of proceeds from an inherited annuity, not on

statements made by the Laras in anticipation of filing their action.

Lewis adds that the only allegation relevant to this motion is “Cross-complainant is informed and believes and thereon alleges that the Laras took steps and made false representations to Nationwide to stop NATIONWIDE from distributing annuity benefits to Alexis Lewis that are called for in the annuity contract”, and if you remove the “made false representations” language, the remaining part of the allegation is “sufficient is sufficient to allege actionable wrongdoing absent involvement of the alleged protected activity the LARAS claim exists.” (Opposition, 4:5-6.)

Lewis describes the allegations regarding the fraudulent representations as “incidental” to the cause of action. Lewis explains that the remaining part of the allegation – “Cross-complainant is informed and believes and thereon alleges that the Laras took steps to stop NATIONWIDE from distributing annuity benefits to Alexis Lewis that are called for in the annuity contract” – is still actionable conduct in that the Laras decided that the beneficiary change was fraudulent and took action such that Nationwide has not paid Lewis her beneficiary payments.

To support this argument Lewis suggests that a May 9, 2022 letter from Joseph to Nationwide shows such action because “twelve days after Alan Lara’s death and having since learned of the August 12, 2021 beneficiary change, JOSEPH LARA wrote NATIONWIDE a letter. In the letter, JOSEPH LARA informed NATIONWIDE that it was the LARAS’ belief that Ms. LEWIS had stolen Alan Lara’s computer login information, changed the beneficiary designation, and placed a forged electronic version of Alan Lara’s signature on the designation.” (Opposition, 2:22-26, citing the Declaration of Blair Widders, ¶ 6, Ex. 3.) And, following receipt of this letter, Nationwide put a hold on annuity payments. (Id., ¶ 7.) The Court notes, however, that Lewis’ counsel did not include a copy of a May 9, 2022 letter. Instead, he attached a copy of Joseph’s May 25,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336808-CU-FR-GDS: Vincent Lara vs. Alexis Paige Lewis 03/12/2024 Hearing on Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion) in Department 54

2022 letter in which he mentions the Laras’ intent to file suit against Lewis. In any event, to the extent Lewis is referencing Joseph’s May 9, 2022 email to Nationwide, in that email, Joseph expressly states that “[m]y brother and I intend to file a lawsuit against Ms. Lewis in an effort to rescind her beneficiary designation.” (Lara Decl., Ex. A, NATIONWIDE000799.) Additionally, Lewis proffers no evidence to suggest that the Laras took any other “steps,” other than by way of their communications, to stop Nationwide from distributing the annuity benefits to her.

The Court concludes that the Laras have satisfied their threshold burden to show that the cross-complaint against them arises from protected activity. The burden now shifts to Lewis to show the probability of prevailing.

IV. Probability of Prevailing

Lewis does not attempt to establish the probability of prevailing. She concedes that her cause of action for Intentional Interference with Contractual Relations against the Laras fails. (Opposition, 2:5-6.) She requests that the Court grant her leave to amend to assert a cause of action for Intentional Interference with Expected Inheritance.

Lewis’ request to amend the cross-complaint is DENIED. It is improper to grant a special motion to strike with leave to amend. (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073.)

V.

Disposition

The Court need not rule on the Laras’ objections to evidence as they were not material to the disposition of this motion.

The Laras’ special motion to strike Lewis’ cross-complaint is GRANTED.

The Laras may seek attorneys’ fees pursuant to a separately noticed motion.

This minute order is effective immediately. The Laras shall submit a formal order and judgment of dismissal of the cross-complaint pursuant. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)

Moving counsel’s notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact Lewis’ counsel and advise counsel of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving counsel is unable to contact Lewis’ counsel prior to hearing, moving counsel is ordered to appear at the hearing.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336808-CU-FR-GDS: Vincent Lara vs. Alexis Paige Lewis 03/12/2024 Hearing on Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion) in Department 54

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-cagov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

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Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336808-CU-FR-GDS: Vincent Lara vs. Alexis Paige Lewis 03/12/2024 Hearing on Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion) in Department 54

or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.