Ian A Stuart, Sr vs Norman Colavincenzo
Ian A Stuart, Sr vs Norman Colavincenzo
Case Number
25CV04005
Case Type
Hearing Date / Time
Mon, 10/27/2025 - 10:00
Nature of Proceedings
CMC; Motion: Strike
Tentative Ruling
Ian A. Stewart Sr. vs. Norman Colavincenzo
Case No. 25CV04005
Hearing Date: October 27, 2025
HEARING: Defendant’s Special Motion To Strike Plaintiff’s Complaint Pursuant To Code of Civil Procedure section 425.16
ATTORNEYS: For Plaintiff Ian A. Stewart Sr.: Self Represented
For Defendant Norman Colavincenzo: Matthew Clarke, Kelley Clarke, PC
TENTATIVE RULING:
The court grants the special motion to strike of defendant Norman Colavincenzo, in part. The allegations appearing on page 20, at lines 3 through 15 of plaintiff’s complaint [beginning with “Defendant Colavincenzo filed a retaliatory ‘Petition to Remove’” and ending with “willfully, fully undermined the Buyout’s success.”] are stricken from the complaint. The court defers ruling on defendant’s request for an award of attorney’s fees until this request is raised in an appropriate noticed motion. Except as otherwise herein granted, the motion is denied.
Background:
On June 27, 2025, plaintiff Ian A. Stewart, Sr., filed a verified complaint against Norman Colavincenzo (Colavincenzo), alleging three causes of action: (1) actual fraud (Civ. Code, § 1572); (20 constructive fraud (Civ. Code, § 1573); and (3) breach of the implied covenant of good faith and fair dealing. As alleged in the complaint:
Plaintiff is the former Trustee and a beneficiary of the Fred A. & Lillian Stewart Trust (the FAS Trust). (Compl. at p. 2, ¶ 1.) The remaining asset of the FAS Trust is cash from the sale of real property located at 3139 Sea Cliff Drive (the Sea Cliff Property) in Santa Barbara, California. (Compl. at p. 2, ¶ 3.)
Colavincenzo serves as the Trustee of the Michael Margaret Stewart Trust (the MMS Trust), which is a separate trust established for the benefit of plaintiff’s nephew, who is also an indirect beneficiary of the FAS Trust. (Compl. at p. 2, ¶ 2.)
On February 17, 2020, counsel for the FAS Trust, Mona Lisa Wallace (Wallace), wrote an email to Colavincenzo’s attorney, Matt Clarke (Clarke), posing the possibility of a buyout of the MMS Trust’s interest in the FAS Trust contingent on accountants Bartlett Pringle and Wolf (BPW) weighing in on the buyout. (Compl. at p. 2, ¶ 4 & Exh. A [Feb. 17, 2020, email from Wallace to Clarke].) Colavincenzo knew that the Sea Cliff Property, as the only remaining asset of the FAS Trust, was a material factor in any buyout of the MMS Trust’s interest. (Compl. at p. 3, ¶ 5.)
On April 23, 2020, plaintiff as Trustee for the FAS Trust, and at the request of Colavincenzo who, pursuant to an agreement between the parties, had solicited a new appraisal (the Appraisal) of the Sea Cliff Property, paid Hammock, Arnold, Smith and Company (the Appraiser) for the Appraisal. (Compl. at p. 3, ¶ 5 & Exh. B.) Due to soils issues, the Appraiser was directed to create an “as is” appraisal which considered the anticipated expense to remediate these issues. (Compl. at p. 3, ¶ 5.)
The Appraisal was delivered to Colavincenzo on June 12, 2020. (Compl. at p. 3, ¶ 5 & Exh. C.) The Appraisal and its provisions were not made available to, and were hidden from, plaintiff by Colavincenzo. (Compl. at p. 4, ¶ 7 & p. 5, ¶ 8.)
On July 10, 2020, Clarke sent to Wallace an offer letter (the Offer) for the FAS Trust buyout of the MMS Trust’s remaining one-third interest, which showed a value for the Sea Cliff Property that was over twice of that which plaintiff anticipated would be the “as is” value for that property. (Compl. at pp. 3-4, ¶ 6, p. 12, ll. 8-10 & Exh. D [Offer].)
The Offer also set forth certain factors (the Factors) used by Colavincenzo to arrive at the Offer, which were known only to Colavincenzo and included the Appraisal which Colavincenzo had withheld from plaintiff despite Colavincenzo’s knowledge of its relevance to the FAS Trust and the Offer. (Compl. at pp. 3-4, ¶ 6.) The Factors set forth in the Offer were false and artificially high because the Appraisal received by Colavincenzo, and hidden from plaintiff, stated that the “as is” value of the Sea Cliff Property was $1.5 million. (Compl., p. 13, ll. 1-17.) If the Appraisal’s valuation had been shared with plaintiff, this would have exposed Colavincenzo’s overstatement and misrepresentation of the Factors set forth in the Offer. (Compl. at p. 4, ¶ 7.)
Wanting to know the “as is” value of the Sea Cliff Property, plaintiff wrote to the Appraiser on July 13, 2020, indicating that plaintiff had received the Offer and requesting the status of the Appraisal. (Compl. at p. 4, ¶ 7.) The Appraiser did not respond. (Ibid.) Two years later, plaintiff learned that on July 20, 2020, the Appraiser had emailed Colavincenzo stating: “’Are you ready for a signed & final copy? [Plaintiff] contacted us in the past week asking for a status update on the appraisal. Would you like for us to respond?’” (Ibid.) In his response, Colavincenzo stated: “’Not just yet. It looks, fine, but not quite ready to have the final document.’” (Ibid.)
On August 5, 2020, plaintiff again wrote to the Appraiser requesting the status of the Appraisal. (Compl. at p. 5, ¶ 8.) The Appraiser did not respond but again sent an email to Colavincenzo. (Ibid.) Years later, plaintiff learned the Appraiser had stated to Colavincenzo: “’This situation makes me very uncomfortable. I [sic] don’t hear back from you on this, I am going to respond to [plaintiff] and let him know we sent a draft to you some time ago[.]’” (Ibid. & Exh. F.)
On August 20, 2020, Wallace presented a “Seven-Point Plan” which required plaintiff to obtain a loan for the buyout of the MMS Trust’s interest in the FAS Trust, and which was conditioned the buyout on the accountings by BPW being to Colavincenzo’s satisfaction and the parties meeting and agreeing upon a final settlement figure (Compl. at pp. 5-6, ¶ 9.) On August 25, 2020, Clarke agreed to the Seven-Point Plan. (Ibid.)
On August 25, 2020, and based on the parties’ agreement to the Seven-Point Plan, plaintiff began to raise funds for the buyout and to engage BPW to create a valuation as of December 31, 2018, which was the date requested by Colavincenzo. (Compl. at p. 6, ¶ 10(a) & (b).) The valuation created by BPW pursuant to the Seven-Point Plan valued the interest of the MMS Trust as $843,012.57, which was below Colavincenzo’s Offer of $1.75 million. (Compl. at p. 20, ¶ 35(2)(a)(ii).)
Following the release of BPW’s valuation, Colavincenzo realized that his false assumptions as to the value of the Sea Cliff Property as stated in the Offer would be exposed, and abandoned the Seven-Point Plan to which Colavincenzo had agreed. (Compl. at p. 23, ¶ 42 & p. 20-21, ¶ 35(2)(a)(iii).)
On January 26, 2021, Colavincenzo commenced litigation to remove plaintiff as the Trustee of the FAS Trust. (Compl. at p. 10, ll. 6-8 & Exh. S.) Colavincenzo made no good faith effort to resolve whatever dispute Colavincenzo alleges existed at that juncture, and would not provide an explanation for what made him made him walk away without concluding the buyout process. (Compl. at p. 21, ll. 7-10.))
On February 24, 2021, plaintiff’s attorney sent an email to Clarke attaching the calculation by BPW which constituted the buyout price, and which would have been far less if the Appraisal had not been hidden by Colavincenzo. (Compl. at p. 7, ¶ 11 & Exh. N.) No response from Clarke or Colavincenzo was received until March 26, 2021, when Clarke sent plaintiff’s attorney an email stating that Colavincenzo “has instructed me to not attend our call, but rather file an action to remove your client as trustee.’” (Compl. at pp. 7-9, ¶¶ 12-14 & Exh. Q.)
On August 31, 2021, plaintiff obtained a second valuation report from BPW which excluded the reduction in property value arising from the Sea Cliff Property’s soils issues, and which resulted in a higher property valuation ($3 million appraisal, versus the $2 million appraisal that the parties had agreed upon for the buyout). (Compl. at p. 14, ll. 13-22.) This new appraisal was sought while Colavincenzo’s hidden appraisal was not forthcoming, gave greater consideration for plaintiff’s nephew, and helped mitigate what would otherwise have been great loss for the MMS Trust resulting from the depletion of FAS Trust cash through the litigation and buyout processes. (Id. at ll. 23-27.)
Plaintiff discovered the Appraisal on August 24, 2022, in connection with the issuance of a subpoena by plaintiff. (Compl. at p. 11, ¶¶ 17-18 & p. 12, ¶ 20.) The Appraisal produced a value that was $500,000 less than the valuation performed by BPW. (Compl. at p. 16, ll. 17-19.) Only Colavincenzo knew that the Factors did not support the buyout amount proposed by Colavincenzo. (Compl. at p. 16, l. 20.) It was Colavincenzo’s intent to deceive the named beneficiaries by hiding the Appraisal in order to get the beneficiaries to buyout the MMS Trust at more than twice the actual value of the FAS Trust. (Compl. at p. 16, ll. 23-25.)
On July 31, 2025, plaintiff filed a notice of related case, identifying Santa Barbara Superior Court case number 16PR00064 entitled Matter of William Stewart Living Trust and Fred & Lillian Stewart Trust, and Santa Barbara Superior Court case number 22CV04219 entitled Michael M Stewart Trust vs. lan Alban Stewart, Sr., et al., as related to this case.
On July 30, 2025, Colavincenzo filed a special motion to strike pursuant to Code of Civil Procedure section 425.16, for an order dismissing the entire action on the grounds that the “gravamen” of plaintiff’s causes of action arise from protected speech and lack minimal merit. (Notice at p. ii, ll. 6-9.)
The motion is opposed by plaintiff.
Analysis:
Code of Civil Procedure section 425.16 provides that “[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).)
“A special motion to strike under section 425.16 is a procedural device that allows a defendant to obtain early dismissal of a lawsuit that qualifies as a SLAPP. [Citation.] A SLAPP (acronym for strategic lawsuit against public participation) is a lawsuit ‘ “ “ ‘ “aimed at preventing citizens from exercising their political rights or punishing those who have done so.” ...’ ...” ... Such suits “are brought, not to vindicate a legal right, but rather to interfere with the defendant’s ability to pursue his or her interests.” ... The aim is to force the defendants to devote time, energy and money to combat the lawsuit long enough for the plaintiff to accomplish his underlying objectives.’ [Citations.] Courts must construe this statute ‘broadly’ in favor of the moving party. [Citation.]” (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 621-622.)
“Section 425.16 posits ... a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. [Citation.] ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)’ [citation]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).)
“Analysis of an anti-SLAPP motion is not confined to evaluating whether an entire cause of action, as pleaded by the plaintiff, arises from protected activity or has merit. Instead, courts should 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.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010.) “[T]o the extent any acts are unprotected, the claims based on those acts will survive.” (Id. at p. 1012; accord Manlin v. Milner (2022) 82 Cal.App.5th 1004, 1018.)
The protected activity asserted in the motion:
Though the specific activity that Colavincenzo asserts is protected under Code of Civil Procedure section 425.16 is not identified or stated in the notice of the motion, opening memorandum contends that this action in its entirety arises from the filing by Colavincenzo of a petition (the Removal Petition) to remove plaintiff as the Trustee of the FAS Trust, and statements or conduct undertaken by Colavincenzo and his counsel in furtherance of the Removal Petition. (Memo. at pp. 2, ll. 17-19 & p. 6, ll. 19-28.)
Relevant here based on the points advanced in the opening memorandum and described above, “[a]s used in [section 425.16], ‘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....” (Code Civ. Proc., § 425.16, subd. (e)(1)-(2).)
As further detailed above, plaintiff alleges the filing of the Removal Petition by Colavincenzo in the complaint. (See, e.g., Compl. at p. 8, ¶ 14; p. 10, ll. 6-8; p. 18, ll. 7-8; p. 21, ll. 3-6; p. 22, ¶ 38 & Exhs. D, G, O, Q & S.) For example, plaintiff alleges that Colavincenzo filed an “[e]x [p]arte action” for the removal of plaintiff as Trustee of the FAS Trust on January 26, 2021. (Compl. at p. 10, ll. 6-8 & Exh. S.) In addition, Exhibit O to the complaint consists of email correspondence ostensibly authored by Clarke on March 26, 2021, stating “my client has instructed me to not attend our call, but rather file an action to remove your client as trustee.” (Compl., Exh. Q.)
Information appearing in the complaint, including its exhibits, described above also suggests or indicates that the Removal Petition was filed in Santa Barbara Superior Court case number 16PR00064 entitled Matter of William Stewart Living Trust and Fred & Lillian Stewart Trust (the Trust Action), which, as also noted above, plaintiff has identified as related to this case.
Absent from the motion is a copy of the Removal Petition, a request for judicial notice of that petition, or any information or evidence showing the date on which the Removal Petition was filed. Colavincenzo also does not present evidence to contradict the allegations of the complaint in regard to the date of filing of the Removal Petition. For these reasons, it is the court’s understanding that Colavincenzo does not dispute that the Removal Petition was filed in the Trust Action on the date alleged in the complaint and described above.
“It is well established that filing a lawsuit is an exercise of a party’s constitutional right of petition.” (Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087 (Chavez).)
Code of Civil Procedure section 425.16 also “encompasses any cause of action against a person arising from any statement or writing made in, or in connection with, an issue under consideration or review by, an official proceeding or body. [Citations.] ‘Statements made before an “official proceeding” or in connection with an issue under consideration or review by a ... judicial body ... are not limited to statements made after the commencement of such a proceeding.’ [Citation.] Statements made ‘in anticipation of a court action’ may be entitled to protection under the anti-SLAPP statute. [Citation.]” (Trinity Risk Management, LLC v. Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1004-1005.)
Plaintiff presents no reasoned factual or legal argument to show why the filing of the Removal Petition, or any statements or writings made in furtherance of that petition, is not entitled to protection under Code of Civil Procedure section 425.16.
For all reasons discussed above, the undisputed evidence and information presented by the parties in this proceeding is sufficient to show that the filing of the Removal Petition by Colavincenzo and alleged in the complaint plainly falls within the categories of protected activity enumerated in Code of Civil Procedure section 425.16. (Code Civ. Proc., § 425.16, subd. (e)(1)-(2).Accordingly, Colavincenzo is not, under the circumstances present here, required to show that the act of filing the Removal Petition, or any statements made in furtherance of or in connection with that petition, were “made in connection with a ‘public issue.’ [Citation.]” (RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th 413, 425 (RGC Gaslamp).)
Plaintiff’s claim of exemption:
To the extent plaintiff asserts that this lawsuit is exempted from Code of Civil Procedure section 425.16, this assertion “raises a threshold issue” which the court must “address ... prior to examining the applicability of section 425.16.” (Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 840.) In addition, plaintiff “has the burden of proving the applicability of the exemption.” (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 24.)
In the opposition to the motion, plaintiff asserts that Colavincenzo’s purported concealment or suppression of the Appraisal constitutes illegal activity. (Opp. at pp. 3.) For this reason, plaintiff argues, the claims alleged in the complaint are exempt under subdivision (d) of Code of Civil Procedure section 425.16, which provides that the anti-SLAPP statute “shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, Insurance Commissioner, district attorney, or city attorney, acting as a public prosecutor.” (Code Civ. Proc., § 425.16, subd. (d).)
As further discussed above, the protected activity at issue here is the filing of the Removal Petition by Colavincenzo, and not the purported concealment or suppression of the Appraisal, which plaintiff does not appear to dispute. The undisputed record reflects that the Removal Petition “was not brought in the name of the People by the city attorney’s office, acting as a public prosecutor.” (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 420 (Montebello).) For this reason, plaintiff has failed to show why the exemption provided under subdivision (d) of Code of Civil Procedure section 425.16 applies here.
To the extent plaintiff contends that the filing of the Removal Petition was illegal, this act “must be illegal as a matter of law to defeat a defendant’s showing of protected activity. The defendant must concede the point, or the evidence conclusively demonstrate it, for a claim of illegality to defeat an anti-SLAPP motion at the first step.” (Montebello, supra, 1 Cal.5th at p. 424, original italics.) Plaintiff fails to explain why Colavincenzo has conceded this point, and has produced no information or evidence conclusively demonstrating that act of filing of the Removal Petition was illegal as a matter of law.
“It is not the defendant’s burden in bringing a SLAPP motion to establish that the challenged cause of action is constitutionally protected as a matter of law.” (Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 165.) Instead, “any ‘claimed illegitimacy of the defendant’s acts is an issue which the plaintiff must raise and support in the context of the discharge of the plaintiff’s [secondary] burden to provide a prima facie showing of the merits of the plaintiff’s case.’ [Citation.]” (Navellier, supra, 29 Cal.4th at p. 94.) For these reasons, plaintiff’s assertion that this lawsuit is exempt also appears to conflate the “two-pronged” procedure described above. (See Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1652 [describing the procedure employed by the court as “two-pronged”].)
For all reasons discussed above, plaintiff has failed to meet his burden to show that an exemption from Code of Civil Procedure section 425.16 applies under the circumstances present here.
The first cause of action:
“As is true with summary judgment motions, the issues in an anti-SLAPP motion are framed by the pleadings.” (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 672.) “In deciding whether the initial ‘arising from’ requirement is met, a court considers ‘the pleadings, … stating the facts upon which the liability or defense is based.’ [Citation.]” (Navellier, supra, 29 Cal.4th at p. 89.) “Thus, the act or acts underlying a claim for purposes of an anti-SLAPP statute is determined from the plaintiffs’ allegations.” (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 883, original italics.)
The first cause of action alleged in the complaint is labeled as one for actual fraud under Civil Code section 1572, which defines “actual fraud” as consisting of “any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:
“1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
“2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
“3. The suppression of that which is true, by one having knowledge or belief of the fact;
“4. A promise made without any intention of performing it; or,
“5. Any other act fitted to deceive.” (Civ. Code, § 1572, subd. (1)-(5).)
Generally, the “elements of fraud ... are: ‘(1) representation; (2) falsity; (3) knowledge of falsity; (4) intent to deceive; and (5) reliance and resulting damage (causation).’ [Citation.] Active concealment or suppression of facts by a nonfiduciary ‘is the equivalent of a false representation, i.e., actual fraud.’ [Citation.]” (Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal.App.4th 282, 291; see also Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 608 [the “intentional concealment of a material fact is an alternative form of fraud and deceit equivalent to direct affirmative misrepresentation.”].)
As a threshold matter, Colavincenzo appears to assert that plaintiff cannot prove the fraud claim alleged in the first cause of action because that claim arises from settlement discussions which are not admissible under California law. “Arguments about the merits of the claims are irrelevant to the first step of the anti-SLAPP analysis.” (Coretronic Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th 1381, 1388.) For this reason, Colavincenzo’s assertion “is more suited to the second step of a[n] anti-SLAPP motion.” (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 446.)
In the first cause of action, plaintiff alleges or effectively alleges that he was unaware of the existence or completion of the Appraisal or that Colavincenzo had received the Appraisal; that Colavincenzo intentionally concealed the Appraisal from plaintiff; that the Appraisal was a material fact; that Colavincenzo knew the Appraisal was relevant to the buyout of the MMS Trust’s one-third interest, to the administration of the FAS Trust, and, later, to the lawsuit against plaintiff; that Colavincenzo knew the concealment of the Appraisal was a “reckless disregard” for the truth; that Colavincenzo intended to deceive plaintiff by concealing the Appraisal and the full list of Factors; that Colavincenzo induced plaintiff to rely on the material misrepresentations made by Colavincenzo to the detriment of a successful buyout; and that plaintiff justifiably relied on Colavincenzo’s representations or omissions. (Compl. at p. 19, ¶¶ 24-27.)
The damages plaintiff allegedly suffered as a result of the conduct described above and in the complaint include “legal fees, financial losses to the FAS Trust, and emotional distress; damages in an amount to be proven at trial.” (Compl. at p. 19, ¶ 28.)
“A claim arises from protected activity when that activity underlies or forms the basis for the claim.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062 (Park).) Plaintiff does not specifically allege in the first cause of action that the filing of the Removal Petition constitutes actual fraud by Colavincenzo. Instead, and considering the elements of actual fraud, the complaint shows that act supplying the basis for relief alleged in the first cause of action is the purported concealment of the Appraisal from plaintiff by Colavincenzo, and not the filing of the Removal Petition or any statements or conduct made in furtherance of, or in connection with, that petition.
Colavincenzo also fails to sufficiently explain why the claim for actual fraud alleged in the complaint is supported by, or factually dependent on, the filing of the Removal Petition. (See Baral v. Schnitt (2016) 1 Cal.5th 376, 396.)
For example, the complaint expressly alleges that the Removal Petition was filed on January 26, 2021. (Compl. at p. 22, ¶ 38 & Exh. S.) Noted above, Colavincenzo offers no evidence or argument to show the date the Removal Petition was filed. The complaint also shows that the purported conduct by Colavincenzo which gives rise to the cause of action for fraud occurred prior to the date the Removal Petition was allegedly filed. (See, e.g., Compl. at p. 3, ¶¶ 5-6 [alleging dates of delivery of Appraisal to Colavincenzo and transmission of the purportedly inflated Offer by Clarke]; p. 5, ¶ 9 [alleging dates of Seven-Point Plan and its final re-elaboration]; p. 6, ¶ 10 [alleging dates on which plaintiff began to execute the Seven-Point Plan].)
Considering that the complaint shows, expressly and by inference, that the conduct giving rise to the fraud claim occurred before the Removal Petition was filed, Colavincenzo also fails to explain why that claim arises from the filing of the Removal Petition, or from any statements made before a “judicial body”, “in connection with” the Removal Petition, or “in preparation for ... or in anticipation of” bringing the Removal Action. (Code Civ. Proc., § 425.16, subd. (e)(1) & (2); RGC Gaslamp, supra, 56 Cal.App.5th at p. 425.)
Moreover, “[i]t would be inappropriate for [the court] to insert into [the complaint] claims for relief based on allegations of activities that plaintiff[] simply [has] not identified, even if [Colavincenzo] suggest[s] ... how plaintiff[] might have intended to frame those claims or attempt to identify the specific conduct or assertions of statements alleged to be false on which plaintiff[] intended to base such claims for relief. It is not [the court’s] role to engage in what would amount to a redrafting of the ... complaint in order to read that document as alleging conduct that supports a claim that has not in fact been specifically alleged, and then assess whether the pleading that we have essentially drafted could survive the anti-SLAPP motion directed at it.” (Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, 621.)
For all reasons discussed above, the court will not effectively redraft the first cause of action to include a claim that is not specifically alleged in the complaint, or read the complaint as alleging that the filing of the Removal Petition supports plaintiff’s claim for actual fraud by Colavincenzo.
In regard to the allegations that Colavincenzo filed the Removal Petition which appearing in the complaint, plaintiff expressly alleges that Colavincenzo filed that petition to “cover up his tracks...”, and that by filing the Removal Petition, Colavincenzo “doubled down on his initial bad behavior....” (Compl. at p. 10, ll. 6-7 & p. 18, ll. 7-8.) These allegations show that the filing of the Removal Petition, which, according to the allegations of the complaint, occurred after the purportedly fraudulent conduct by Colavincenzo, does not give rise to a separate claim of fraud. Instead, and at best, the allegations related to the filing of the Removal Petition merely illustrate or “reflect[] the manner in which” Colavincenzo purportedly attempted hide the purportedly fraudulent conduct, for the purpose of providing support for plaintiff’s fraud claim. (Gaynor v. Bulen (2018) 19 Cal.App.5th 864, 879-880 (Gaynor); Park, supra, 2 Cal.5th at p. 1064 [courts must “respect the distinction between activities that form the basis for a claim and those that merely lead to the liability-creating activity or provide evidentiary support for the claim.”].)
Even if the complaint shows that any statement or conduct giving rise to the first cause of action was followed by the filing of the Removal Petition, this does not recast plaintiff’s fraud claim to one arising from that conduct. (Park, supra, 2 Cal.5th at pp. 1064-1065 [general discussion of activities providing support for a claim “without being a basis of liability”]; Gaynor, supra, 19 Cal.App.5th at p. 880.)
Additionally, “the mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.” (Navellier, supra, 29 Cal.4th at p. 89.) For example, if the act of filing of the Removal Petition was removed from the complaint, or ignored, plaintiff could still allege a claim for actual fraud based on the purported intentional concealment of, or suppression of facts appearing in, the Appraisal by Colavincenzo. (Park, supra, 2 Cal.5th at p. 1068.) For this reason, the filing of the Removal Petition is not necessary to establish the claim alleged in the first cause of action. (See also White v. Davis (2023) 87 Cal.App.5th 270, 289 [general discussion].)
For all reasons discussed above, the first cause of action alleged in plaintiff’s complaint is factually dependent on, and arises from, the purported concealment or suppression of the Appraisal by Colavincenzo, which plaintiff contends was material to the Offer and the proposed buyout alleged in the complaint. Furthermore, under the circumstances alleged in the complaint, the protections provided in Code of Civil Procedure section 425.16 are not triggered by the mere reference to the filing of the Removal Petition in the complaint. In addition, Colavincenzo has failed to meet his burden to demonstrate that the claim alleged in the first cause of action arises from the filing of the Removal Petition, or any statements or conduct in furtherance of that petition. Therefore, and for all further reasons stated above, the court will deny the motion as to the first cause of action for actual fraud alleged in the complaint.
The second cause of action:
The second cause of action for constructive fraud is made under Civil Code section 1573, which defines constructive fraud as consisting of “any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or, [¶] ... any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.” (Civ. Code, § 1573, subd. (1)-(2).) “A constructive fraud arises on a breach of duty by one in a fiduciary relationship who misleads another to his prejudice.” (Warren v. Merrill (2006) 143 Cal.App.4th 96, 109.)
In the second cause of action, plaintiff alleges that Colavincenzo, as the Trustee of the MMS Trust, owed “interlocking trust” duties to plaintiff, and to the FAS Trust and its beneficiaries to “disclose material facts, such as [t]he Appraisal...”; that Colavincenzo breached these duties by concealing the Appraisal and the Factors; and that plaintiff, being unaware of the Appraisal or other factors considered by Colavincenzo in arriving at the Factors, relied on Colavincenzo’s omissions. (Compl. at p. 19-20, ¶¶ 31-33.) Plaintiff alleges the same damages described above. (Id. at ¶ 34.)
The same reasoning and analysis apply. For all reasons discussed above, the claim alleged in the second cause of action is dependent on the purported concealment or suppression of the Appraisal by Colavincenzo, and does not arise from the filing of the Removal Petition, or from any statements or conduct in furtherance of that petition. As Colavincenzo has failed, for all reasons discussed above, to meet his burden to demonstrate why the claim alleged in the second cause of action arises from protected activity, the court will deny the motion as to the second cause of action for constructive fraud alleged in the complaint.
The third cause of action:
The third cause of action alleges a claim for breach of the implied covenant of good faith and fair dealing. “ ‘The covenant of good faith is implied as a supplement to express contractual covenants to prevent a contracting party from engaging in conduct that frustrates the other party’s rights to the benefits of the agreement.’ [Citation.] Where ... a party’s action for breach of the covenant of good faith and fair dealing does not sound in tort, the action is just ‘another “garden variety breach of contract” action for which only contract damages may be recovered.’ [Citations.] As in any contract action, ‘[i]t is essential to establish a causal connection between the breach and the damages sought.’ [Citations.]” (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 541.)
“A cause of action for tortious breach of the covenant of good faith and fair dealing requires the existence and breach of an enforceable contract as well as an independent tort.” (Innovative Business Partnerships, Inc. v. Inland Counties Regional Center, Inc. (2011) 194 Cal.App.4th 623, 631-632.)
For all reasons discussed above, Colavincenzo’s ostensible assertion that plaintiff cannot prove the claim alleged in the third cause of action because plaintiff fails to identify a written contract is not relevant to the question of whether that claim arises from protected activity.
In the third cause of action, plaintiff alleges that Colavincenzo’s acts of fraud or bad faith “breach the implied covenant of good faith inherent in trust negotiations....” (Compl. at p. 20, ¶ 35(1) & (2).) The specific acts of fraud or bad faith that plaintiff alleges constitute a breach of this covenant by Colavincenzo include: (1) the concealment by Colavincenzo of the Appraisal, which plaintiff alleges “undermined the transparency and fairness intended by the Seven-Point Plan...”; (2) the abandonment by Colavincenzo of the Seven-Point Plan after the BPW valuation; and (3) the filing of the Removal Petition. (Compl. at pp. 20-21, ¶ 35(2)(a)(i)-(iii).)
“A mixed cause of action is subject to [Code of Civil Procedure] section 425.16 if at least one of the underlying acts is protected conduct, unless the allegations of protected conduct are merely incidental to the unprotected activity.” (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1287.)
As to the alleged concealment of the Appraisal, to the extent this conduct gives rise to a claim for breach of the implied covenant of good faith and fair dealing, the same reasoning and analysis apply. For all reasons discussed above, to the extent the third cause of action alleges a claim arising from the alleged concealment of the Appraisal, the motion will be denied as to that claim.
As to the purported abandonment of the Seven-Point Plan, which as further discussed above occurred prior to the filing of the Removal Petition, Colavincenzo fails to show why the “abandonment” consists wholly of, or is not dependent on any other act apart from, the filing of the Removal Petition. For this reason, Colavincenzo has failed to show why the “abandonment” of the Seven-Point Plan is protected under Code of Civil Procedure section 425.16. Therefore, to the extent the third cause of action arises from conduct constituting an abandonment of the Seven-Point Plan by Colavincenzo apart from the filing of the Removal Petition, the court will deny the motion as to that claim.
As to the filing of the Removal Petition, which plaintiff expressly alleges is a separate breach by Colavincenzo of the implied covenant of good faith and fair dealing, this conduct does not appear to be incidental to any unprotected activity alleged in the third cause of action. Plaintiff also fails to explain, with reasoned argument, why the third cause of action does not allege a claim that arises from, or is dependent on, the filing of the Removal Petition.
For all reasons discussed above, the filing of the Removal Petition is protected under Code of Civil Procedure section 425.16. (Chavez, supra, 94 Cal.App.4th at p. 1087.) Considering that there appears to be no dispute by the parties that the third cause of action alleges a claim for breach of the implied covenant of good faith and fair dealing which arises from the filing of the Removal Petition, Colavincenzo has met his burden to show that this claim indisputably arises from protected activity within the meaning of Code of Civil Procedure section 425.16.
If the court finds “the defendant has made a threshold showing that the challenged cause of action is one ‘arising from’ protected activity [] [citation] ..., it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.) For all reasons discussed below, to the extent the third cause of action alleges a claim for breach of the implied covenant of good faith and fair dealing that arises from the filing of the Removal Petition by Colavincenzo, plaintiff cannot meet his burden to establish a probability of prevailing on that claim.
Subject to exceptions which do not appear to apply here, Code of Civil Procedure section 47 defines a “privileged publication or broadcast” to include one made “[i]n any ... (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 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure....” (Civ. Code, § 47, subd. (b).) “The privilege is ‘absolute in nature, applying “to all publications, irrespective of their maliciousness.” ’ [Citation.]” (Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 116 (Optional Capital), original italics.)
“The filing of a legal action is not ‘an independent, noncommunicative, wrongful act.’ [Citation.] We contemplate no communication that is more clearly protected by the litigation privilege than the filing of a legal action.” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1249.) For these and all reasons further discussed above, the present record reflects that the filing of the Removal Petition is protected as a privileged publication for purposes of Code of Civil Procedure section 47, notwithstanding whether plaintiff alleges that the filing of that petition by Colavincenzo was malicious or retaliatory.
“The litigation privilege is ‘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.’ [Citation.] ‘A plaintiff cannot establish a probability of prevailing if the litigation privilege precludes a defendant’s liability on the claims.’ [Citation.]” (Optional Capital, supra, 18 Cal.App.5th at p. 115.)
As the filing of the Removal Petition is privileged under Code of Civil Procedure section 47, plaintiff cannot, for all reasons discussed above, establish a probability of prevailing on a claim arising from the filing of that petition. For these reasons, the court will grant the motion, in part, only as to that claim for breach of the implied covenant of good faith and fair dealing alleged in the third cause of action which arises from the filing of the Removal Petition by Colavincenzo.
“[W]hile courts may strike less than the entirety of a complaint or pleaded cause of action, the trial court is not required to take on the burden of identifying the allegations susceptible to a special motion to strike. If a defendant wants the trial court to take a surgical approach, whether in the alternative or not, the defendant must propose where to make the incisions. This is done by identifying, in the initial motion, each numbered paragraph or sentence in the complaint that comprises a challenged claim and explaining ‘the claim’s elements, the actions alleged to establish those elements, and wh[y] those actions are protected.’ [Citation.]” (Park v. Nazari (2023) 93 Cal.App.5th 1099, 1109 (Nazari); see also Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 [moving defendant must “identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute”].)
“Where a defendant moves to strike the entire complaint and fails to identify, with reasoned argument, specific claims for relief that are asserted to arise from protected activity, the defendant does not carry his or her first-step burden so long as the complaint presents at least one claim that does not arise from protected activity.” (Nazari, supra, 93 Cal.App.5th at p. 1108.)
Though, as further discussed herein, the third cause of action presents at least one claim that does not arise from protected activity, the motion requests an order striking the entire complaint. Colavincenzo fails to identify any specific paragraph or sentence in the complaint which comprises the challenged claim alleged in the third cause of action, and fails to propose which, if any, allegations giving rise to the third cause of action should be stricken.
Notwithstanding that Colavincenzo has failed to identify each numbered paragraph or sentence alleging specific claims for relief that are asserted to arise from protected activity, the complaint identifies three specific acts by Colavincenzo which plaintiff contends are a purported breach of the implied covenant as further discussed herein. One of these acts is the filing of the Removal Petition. For these reasons, the court will, notwithstanding the deficiencies in the motion, order that the allegation specific to the filing of the Removal Petition which gives rise to a claim for breach of the implied covenant of good faith and fair dealing, appearing on page 21 of the complaint as part of Section IV, paragraph 35(2)(a)(iii), be stricken from the complaint.
Colavincenzo’s request for an award of attorney’s fees:
The motion includes a request for attorney’s fees in the amount of $7,200, which is supported by a declaration of Colavincenzo’s counsel, Clarke.
“[A] prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” (Code Civ. Proc., § 425.16, subd. (c)(1).)
The request for attorney’s fees asserted in the motion appears to be premised on an assumption by Colavincenzo that the motion is meritorious as to all claims or causes of action alleged in the complaint, and that plaintiff would not prevail in any respect. Under the totality of the circumstances present here, and to provide the parties with an opportunity to fully brief the attorney’s fee issue considering the court’s ruling herein, the court will defer addressing the attorney’s fees issue until this issue is raised in an appropriate noticed motion.