Motion to Strike Portions Of Complaint; Demurrer to Complaint; Motion to Seal; Order to Show Cause re: Legal Representation; Order to Show Cause re: Failure to Prosecute; Case Management Conference
2 Abinante vs. Shaffer
2025-01490233
1. Motion to Strike Portions Of Complaint 2. Demurrer to Complaint 3. Motion to Seal 4. Order to Show Cause re: Legal Representation 5. Order to Show Cause re: Failure to Prosecute 6. Case Management Conference
Special Motion to Strike.
The motion by defendants Thomas Shaffer and Wendy Dahl to strike portions of Plaintiffs’ Complaint pursuant to Code Civ. Proc., § 425.16, is GRANTED IN PART and DENIED in part.
The motion is GRANTED as to the following allegations of the Complaint:
1. That portion of ¶ 45 of the Complaint, reading: “and have used those funds (his own funds) to litigate against ABINANTE and make wild claims about him stealing money for himself;” 2. That portion of ¶ 46 of the Complaint, reading: “Despite this, BURNER and SHAFFER continue to authorize monthly legal fees between $60,000 and $100,000 for the purpose of litigating against ABINANTE. They brought this action against ABINANTE and his entities under the premise of Covid Clinic, Inc. being a ‘nonprofit’ while simultaneously alleging in their pleadings and arbitration demands that it was run as a for profit;” 3.
That portion of ¶ 61 of the Complaint, alleged within the 1st cause of action for declaratory relief, reading: “and ultimately sued ABINANTE with the assets which were supposed to be transferred to ABINANTE and RUME; 4. That portion of ¶ 63(e) of the Complaint, alleged within the 1st cause of action for declaratory relief, reading: “or litigate against him using assets that were supposed to be transferred to RUME were taken in violation of fiduciary and equitable duties owed to ABINANTE;” 5. That portion of ¶ 63 of the Complaint, alleged within the 2nd cause of action for breach of fiduciary duties, reading: “using corporate funds intended for transfer to RUME to fund litigation against ABINANTE personally;” 6.
That portion of ¶ 66(c) of the Complaint, alleged within the 2nd cause of action for breach of fiduciary duties, reading: “Using funds and resources she knew were earmarked for RUME HEALTH to fund litigate directly targeting ABINANTE, including claims asserting he had no right to the assets he created and funded;” 7. That portion of ¶ 70(c) of the Complaint, alleged within the 3rd cause of action for intentional misrepresentation, reading: “Use corporate funds and infrastructure to litigate against ABINANTE;” 8.
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That portion of ¶ 73(b) of the Complaint, alleged within the 3rd cause of action for intentional misrepresentation, reading: “Exposure to costly and harassing litigation funded by assets meant for RUME HEALTH;” 9. That portion of ¶ 77 of the Complaint, alleged within the 4th cause of action for negligent misrepresentation, reading: “and ultimately used corporate funds to initiate litigation against Plaintiffs;” 10. That portion of ¶ 80 of the Complaint, alleged within the 4th cause of action for negligent misrepresentation, reading “and costs incurred in defending against litigation funded with resources that were intended for the transition;” 11.
That portion of ¶ 87(b) of the Complaint, alleged within the 5th cause of action for civil conspiracy, reading: “and use it to litigate against him personally;” 12. That portion of ¶ 98 of the Complaint, alleged within the 6th cause of action for intentional misrepresentation, reading: “and initiate litigation against him;” and 13. That portion of ¶ 113 of the Complaint, alleged within the 8th cause of action for equitable indemnity, reading: “and used corporate funds to initiate litigation against ABINANTE and RUME HEALTH.”
Moving parties have shown that these allegations arise out of protected activity. (Code Civ. Proc., § 425.16, subd. (e)(1) [protected activity includes “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law”]; Baral v. Schnitt (2016) 1 Cal.5th 376, 384 [moving defendant’s initial burden to identify allegations of protected activity, and the claims for relief supported by them]; Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1166-1167 [“allegations related to the filing and funding” of litigation “describe[] conduct constituting protected activity” under the anti-SLAPP statute].)
Plaintiffs have not opposed the motion and have not met their burden of presenting admissible evidence showing that these allegations are “legally sufficient and there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment.” (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 108; see also Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 [once initial burden met, plaintiff’s burden to show claim has minimal merit].)
The remainder of the motion, which seeks to strike the 1st through 6th and 8th causes of action in their entirety, is DENIED. Moving parties have not identified any other allegations of protected activity, aside from the allegations above regarding initiating and funding litigation. (Baral v. Schnitt, supra at 384 [moving defendants’ initial burden].) The challenged causes of action are not limited to these allegations, but are also based on other activity which is not shown to be protected under the anti-SLAPP statute. (Bonni v. St. Joseph Health System, supra at 1012 [court may strike specific allegations, but “to the extent any acts are unprotected, the claims based on those acts will survive”].)
Moving parties are awarded reasonable attorney fees in the amount of $4,840.00 for 8 hours at $605/hour. (Code Civ. Proc., § 425.16, subd. (c)(1).)”
Demurrer to Complaint.
Defendant Healthy Campus, LLC’s demurrer to the 1st, 5th, 7th, and 8th causes of action of the Complaint is SUSTAINED, with leave to amend, on grounds of failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)
Moving defendant’s request for judicial notice is DENIED. (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 607-608 [materials prepared by private parties and merely on file with state agencies are not ordinarily a proper subject of judicial notice]; Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145–1146 [“the existence of a contract between private parties cannot be established by judicial notice under Evidence Code section 452, subdivision (h)”]; see also The Travelers Indemnity Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 354–355 [“The existence and terms of a private agreement are not facts that are not reasonably subject to dispute and that can be determined by indisputable accuracy”].)
Plaintiffs are granted 20 days leave to file a First Amended Complaint, if at all.
1st cause of action: declaratory relief.
This cause of action fails to state sufficient facts. (Ludgate Ins. Co. v. Lockheed Martin Corp. (2002) 82 Cal.App.4th 592, 605 [elements]; Complaint, ¶¶ 58-61 [alleging only disputes between plaintiff Abinante and defendants Shaffer, Burner, and Collins, not this moving party].)
5th cause of action: civil conspiracy.
This cause of action fails to state sufficient facts. (Mosier v. Southern California Physicians Insurance Exchange (1998) 63 Cal.App.4th 1022, 1048 [elements].)
As discussed elsewhere, the Complaint fails to state any valid cause of action against this moving party. (Worldwide Commerce, Inc. v. Fruehauf Corp. (1978) 84 Cal.App.3d 803, 811 [conspiracy claim fails where no underlying tort is validly alleged]; Okun v. Superior Court (1981) 29 Cal.3d 442, 454 [“A complaint for civil conspiracy states a cause of action only when it alleges the commission of a civil wrong that causes damage ... the conspiracy itself is not actionable without a wrong”].)
7th cause of action: intentional interference with prospective economic advantage.
This cause of action fails to state sufficient facts. (Youst v. Longo (1987) 43 Cal.3d 64, 71 [elements]; Della Penna v. Toyota Motor Sales, Inc. (1995) 11 Cal.4th 376, 393 [defendant’s actions must be wrongful by some measure other than the interference itself]; Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1159 [“An act is independently wrongful if it is ‘unlawful, that is if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard’”].) There are no facts alleged to show how this moving party committed any actions that are independently wrongful, as opposed to the individual defendants who are alleged to have breached fiduciary duties to plaintiffs, and/or committed misrepresentation.
8th cause of action: equitable indemnity.
This cause of action fails to state sufficient facts. (Bailey v. Safeway, Inc. (2011) 199 Cal.App.4th 206, 212 [elements, including a showing of fault on the part of the alleged indemnitor].) There are no facts alleged to show how this moving party is at fault, as opposed to the individual defendants who are alleged to have breached fiduciary duties to plaintiffs, and/or committed misrepresentation.
Motion to Seal.
Defendant Healthy Campus, LLC’s motion to seal Ex. 3 to its request for judicial notice is DENIED. (Cal. Rules of Court, Rules 2.550, 2.551 [sealing requirements / findings].) Moving party fails to show why the entire document should be sealed. (Cal. Rules of Court, Rules 2.550, subd. (d)(4) [proposed sealing must be “narrowly tailored”], 2.551, subd. (a) [“The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties”]; H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894 [moving party must present “specific enumeration of the facts sought to be withheld and specific reasons for withholding them”].)
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3 Daimler Truck Financial Services USA LLC vs. Expercarriers Inc.
2022-01280524
Motion for New Trial
***Parties were ordered to have a court reporter present***
Defendant Christopher Sawicki’s Motion for New Trial is DENIED.
The Court notes that no Opposition was filed by Plaintiff and no Reply was filed by Defendant Sawicki.
Moving Party was in court on November 3, 2025, when Plaintiff answered ready. Moving Party indicated that he needed a continuance due to a recent medical issue. The Court continued the matter. The Court inquired of both sides as to a mutually acceptable date for the continued trial and December 15, 2025 was agreed upon.
On December 15, 2025, Moving Party and