IH PROPERTIES, LP ET AL vs. CARON SCHMIERER, AS EXECUTOR OF THE ESTATE OF MARGARET GRADE, DECEASED ET AL

Marin County would not issue Plaintiffs a business license until the TOT was paid. (Id. at ¶ 32.) The Estate ultimately paid the TOT, but not until September 2025. (Id. at ¶¶ 31-32.) Plaintiffs allege that “DeLong induced delay in payment of the TOT by blocking or challenging payment of the TOT from the Estate’s funds.” (Id. at ¶ 28; see also ¶ 53.)

The complaint asserts that under the Purchase Agreement, Sellers were required to transfer the Sir & Star’s liquor license to Plaintiffs. (Complaint, ¶¶ 33-34.) More than four years after execution of the Purchase Agreement, this transfer has still not occurred. (Id. at ¶ 33.) Plaintiffs claim that the Estate is responsible for effectuating this transfer and “has induced delay by vacillating over whether it would transfer the liquor license.” (Id. at ¶ 34.) They explain that “Mr. DeLong is . . . inducing the Estate to withhold the liquor license based on wrongful statements that he owns or controls the liquor license.” (Ibid.) DeLong’s purported entitlement to the liquor license and/or payment for transferring it is allegedly based on his Marvin claims against the Estate. (Id. at ¶ 54.)

Plaintiffs further allege that sometime after execution of the Purchase Agreement, Sellers removed certain items Plaintiffs had purchased for various of the properties and stored them in the Boathouse, another property Sellers operated. (Complaint, ¶¶ 37, 52.)

The complaint asserts four causes of action. The First Cause of Action is a breach of contract claim against Sellers and Sir & Star LLC, the current holder of the liquor license. (Complaint, ¶ 11.) This cause of action alleges that Sellers’ failure to pay the TOT; the Estate’s delay in paying the TOT; and Sellers’, the Estate’s, and Sir & Star LLC’s failure to transfer the liquor license breached the Purchase Agreement. (Id. at ¶ 69.) The Second Cause of Action is a conversion claim against Sellers based on their misappropriating Plaintiffs’ property and stashing it in the Boathouse. (Id. at ¶ 77-80.)

The Third Cause of Action is a claim for intentional interference with a contract against DeLong, and the Fourth Cause of Action is a claim for intentional interference with prospective economic advantage, also against DeLong. Both the Third and the Fourth Cause of Action allege that DeLong interfered with Sellers’ and the Estate’s performance of their obligation to transfer the Sir & Star’s liquor license to Plaintiff. (Id. at ¶¶ 82, 84.) Before the Court is DeLong’s motion to strike portions of the complaint under the anti-SLAPP statute.

Legal Standard

“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,

1 DeLong’s requests for judicial notice are GRANTED. (Evid. Code, § 452, subd. (d).)

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 purpose of this statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigant’s constitutional right of petition or free speech. (Code Civ. Proc., § 425.16, subd. (a); Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055-1056.)

Courts use a two-step process to evaluate anti-SLAPP motions. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) First, the moving defendant must show that the challenged lawsuit arises from protected activity. (Ibid.) To establish protected activity, the defendant must demonstrate that “the act or acts underlying the plaintiff’s claim falls within one of the four categories [of protected activity] identified in section 425.16, subdivision (e).” (Lee v. Silveira (2016) 6 Cal.App.5th 527, 538; accord Howard Jarvis Taxpayers Assn. v.

Powell (2024) 105 Cal.App.5th 955, 968.) In determining whether a complaint or a subset of it “arises from” protected activity, “[t]he critical consideration is whether the cause of action is based on the defendant’s free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [emphasis added]; see also Baral v. Schnitt (2016) 1 Cal.5th 376, 396.) “Courts deciding an anti- SLAPP motion . . . must consider the claim’s elements, the actions alleged to establish those elements, and whether those actions are protected.” (Bonni v.

St. Joseph Health System (2021) 11 Cal.5th 995, 1015; accord Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.)

If the defendant makes this “threshold showing[,]” the court proceeds to the second step, where the plaintiff must demonstrate a probability of prevailing on the merits of the claims at issue. (Equilon Enterprises, supra, 29 Cal.4th 53, 67; Code Civ. Proc., § 425.16, subd. (b)(1).) This is not a particularly weighty burden. (See Navellier, supra, 29 Cal.4th 82, 95 [only “minimal merit” is “required to survive an anti-SLAPP motion].) The plaintiff must merely “ ‘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.’ ” (Soukup v.

Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 [quoting Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548]; see also Bergman v. Drum (2005) 129 Cal.App.4th 11, 18 [standard is similar to that governing a plaintiff’s burden in opposition to a defendant’s motion for summary judgment].) The court does not weigh the evidence, but accepts all evidence favorable to the plaintiff as true and asks whether it makes the required prima facie showing. (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700 [abrogated in unrelated part as described in Muddy Waters, LLC v.

Superior Court (2021) 62 Cal.App.5th 905, 924].) The court should consider evidence presented by the defendant at the merits stage, but only to the extent of determining whether such evidence defeats the plaintiff’s case as a matter of law. (Ibid.) “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.” (Navellier, supra, 29 Cal.4th 82, 89 [emphasis in original].)

Discussion

Procedural Matters

DeLong has moved to strike material beyond the Third and Fourth Causes of Action. However, the Court’s decision to grant the motion as to the Third and Fourth Causes of Action in their

entirety moots the rest of the motion. An anti-SLAPP motion may be directed only at “[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[.]” (Code Civ. Proc., § 425.16, subd. (b)(1).) The phrase “cause of action” as used here refers to “allegations of protected activity that are asserted as grounds for relief.” (Baral, supra, 1 Cal.5th 376, 395 [emphasis in original].) The Third and Fourth Causes of Action are the only causes of action asserted against DeLong. Once they are stricken from the pleading, no statement left in the complaint is “asserted as grounds for relief” (ibid.) against DeLong, so there are no proper subjects of an anti-SLAPP motion by DeLong2 remaining in the pleading.

Prong One: Protected Activity – Third (Intentional Interference with Contract) and Fourth (Intentional Interference with Prospective Economic Advantage) Causes of Action

“To prevail on a cause of action for intentional interference with contractual relations, a plaintiff must plead and prove (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148.)

Plaintiffs’ Third Cause of Action alleges that DeLong interfered with Sellers’ performance of their contractual obligation to transfer the Sir & Star’s liquor license to Plaintiffs. (Complaint, ¶ 82.) In connection with this claim, Plaintiffs allege that DeLong “wrongfully asserted control and/or ownership of the liquor license, and wrongfully prevented the Estate from duly transferring the liquor license.” (Complaint, ¶ 82.) Because this is the only conduct by DeLong Plaintiffs allege in connection with this cause of action, this necessarily must be the “intentional act[] designed to induce a breach or disruption of the contractual relationship[.]” (Reeves, supra, 33 Cal.4th 1140, 1148.)

“The elements of intentional interference with prospective economic advantage have been stated as follows: ‘(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.’” (Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 521-522 [quoting Youst v. Longo (1987) 43 Cal.3d 64, 71, fn. 6].)

Plaintiffs’ Fourth Cause of Action alleges that Sellers and the Estate were required to transfer the Sir & Star’s liquor license to Plaintiffs, but “DeLong wrongfully asserted control and/or ownership of the liquor license, and wrongfully prevented the Estate from duly transferring the liquor license.” (Complaint, ¶ 84.) Absent any other conduct by DeLong alleged in support of

2 DeLong can only move to strike a claim against him arising from his conduct. (See Code Civ. Proc., § 425.16, subd. (b)(1).) If any other defendants in this case want allegations about DeLong stricken as a basis for their liability to Plaintiffs, those defendants will have to file their own anti-SLAPP motions.

this claim, this conduct must supply the “intentional act” element. (Westside Center, supra, 42 Cal.App.4th 507, 522.)

The following excerpt from the complaint is determinative of the issue of whether the Third and Fourth Causes of Action arise out of protected activity:

“Mr. DeLong has wrongfully claimed that he is entitled to the liquor license and/or money in exchange for the liquor license based on Marvin claims he brought against the Estate. Mr. DeLong has repeatedly asserted an interest in the liquor license, causing the Estate to withhold the liquor license.”

(Complaint, ¶ 54.) This allegation makes it indisputable that when Plaintiffs, in connection with their Third and Fourth Causes of Action, accuse DeLong of “wrongfully assert[ing] control and/or ownership of the liquor license” (Complaint, ¶¶ 82, 84), they are accusing him of doing so through his Marvin claims against the Estate. When Plaintiffs accuse him of “wrongfully prevent[ing] the Estate from duly transferring the liquor license” (ibid.), they mean that he has embroiled the Estate in Marvin litigation and then told the Estate that his entitlements under Marvin include the liquor license,3 and those statements have led the Estate to withhold the liquor license.

The complaint does not describe any act of interference by DeLong beyond statements Plaintiffs themselves have tied directly to DeLong’s prosecution of his Marvin claims against the Estate. (Id. at ¶ 54; see also Opposition, p. 10 [admitting that Plaintiffs are “challeng[ing] DeLong’s use of those [Marvin] claims to prevent the Estate from performing a pre-existing contract with Plaintiffs”].)

Were the plain language of Plaintiffs’ complaint not enough to establish that Plaintiffs have sued DeLong for filing Marvin claims against the Estate, prosecuting them, and advocating for their validity, Plaintiffs have also attached to the complaint various exhibits containing the communications whereby DeLong allegedly “asserted control and/or ownership of the liquor license[.]” (Id. at ¶¶ 82, 84.) These exhibits all consist of emails showing (sometimes secondhand) DeLong’s counsel describing DeLong’s litigation position to counsel for the Estate or for Plaintiffs, sometimes clearly in the context of settlement negotiations. (See Complaint, Exs. C-D, I.)

The Third and Fourth Causes of Action arise out of DeLong’s filing his Marvin claims against the Estate and maintaining the validity of his claims in communications via counsel with his opponents’ attorneys, some of which were clearly settlement negotiations. All of this is protected

3 Plaintiffs protest that DeLong has not, in his complaint in the Marvin action, alleged that he is entitled to the liquor license, as opposed to a share of the Estate’s assets more generally. (Memorandum, p. 13.) This is irrelevant. The Court is not concerned with the merits or even the specifics of DeLong’s Marvin claims. Plaintiffs have sued DeLong for asserting an entitlement to the liquor license based expressly on those legal claims. (Complaint, ¶ 54.) Plaintiffs’ claims thus arise out of DeLong’s statements in connection with the Marvin action regardless of whether the Marvin action is capable of actually entitling DeLong to the liquor license. (See Medical Marijuana, Inc. v.

ProjectCBD.com (2020) 46 Cal.App.5th 869, 883 [“[T]he act or acts underlying a claim for purposes of an anti- SLAPP motion is determined from the plaintiffs’ allegations.”] [emphasis in original].) The emails attached to Plaintiffs’ complaint further evidence that whatever is alleged in DeLong’s Marvin complaint, he is in fact claiming an entitlement to the liquor license in connection with those claims.

activity under the anti-SLAPP statute, specifically Section 425.16, subdivision (e)(2).4 (See ValueRock TN Properties, LLC v. PK II Larwin Square SC LP (2019) 36 Cal.App.5th 1037, 1046; Cabral v. Martins (2009) 177 Cal.App.4th 471, 480 [“[A]ll communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute.”]; GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 901 [“An attorney’s communication with opposing counsel on behalf of a client regarding pending litigation directly implicates the right to petition and thus is subject to a special motion to strike.”].)

Plaintiffs argue that the Third and Fourth Causes of Action are based in part on the allegation that DeLong blocked the Estate from paying the TOT, which DeLong has not established is protected activity, meaning these causes of action cannot be stricken in their entirety. (See Bonni, supra, 11 Cal.5th 995, 1010-1011 [discussing anti-SLAPP motions directed at mixed causes of action].) The Court reproduces, verbatim, the manner in which the complaint pleads these causes of action:

“THIRD CAUSE OF ACTION (INTENTIONAL INTERFERENCE WITH CONTRACT AGAINST DANIEL DELONG)

81. Plaintiffs repeat and re-allege all of the allegations of all the preceding paragraphs as if fully set forth herein.

82. Sellers (and the Estate) were required to transfer the liquor license for the Sir & Star Restaurant to Plaintiffs. Plaintiffs took the necessary steps to effectuate a transfer of the liquor license from Sellers to Plaintiffs. On information and belief, Daniel DeLong wrongfully asserted control and/or ownership of the liquor license, and wrongfully prevented the Estate from duly transferring the liquor license.

FOURTH CAUSE OF ACTION (INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE AGAINST DANIEL DELONG)

83. Plaintiffs repeat and re-allege all of the allegations of all the preceding paragraphs as if fully set forth herein.

84. Sellers (and the Estate) were required to transfer the liquor license for the Sir & Star Restaurant to Plaintiffs. Plaintiffs took the necessary steps to effectuate a transfer of the liquor license. On information and belief, Daniel DeLong

4 This provision covers “any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body[.]” (Code Civ. Proc., § 425.16, subd. (e)(2).) The Court takes sua sponte judicial notice of the fact that DeLong’s Marvin claims against the Estate are currently pending before this Court in Case No. CV0001077, with a jury trial set to begin on September 3, 2026. (Evid. Code, § 452, subds. (d), (h); Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 752 [court may take judicial notice sua sponte].)

wrongfully asserted control and/or ownership of the liquor license, and wrongfully prevented the Estate from duly transferring the liquor license.”

Plaintiffs argue that these causes of action include DeLong’s alleged conduct with regard to the TOT due to the boilerplate allegation in Paragraphs 81 and 83. The Court is not persuaded that this stock language is capable of expanding a cause of action to encompass a theory not expressly pleaded as a basis for that specific cause of action. As pleaded, Plaintiffs’ theory of liability for both of these causes of action is that DeLong tortiously interfered with Plaintiffs’ acquisition of the Sir & Star’s liquor license.

Interpreting these claims to be based on his alleged conduct in connection with the TOT as well would run afoul of the requirement that a plaintiff provide a defendant with fair notice of the allegations against him. (See Signal Hill Aviation Co. v. Stroppe (1979) 96 Cal.App.3d 627, 636 [it is “essential . . . that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining”].) The complaint likewise does not plead any cause of action against DeLong based on “his [alleged] continued unauthorized use of the [P]roperties” (Opposition, p. 9 [referring to Complaint, ¶ 49].)

The Third and Fourth Causes of Action, which are the only causes of action pleaded against Delong, are both based entirely on DeLong’s alleged conduct with regard to the Sir & Star’s liquor license.

Plaintiffs’ argument that these claims do not target speech or petitioning activity, but instead “ ‘an action or decision that was arrived at following speech or petitioning activity’ ” (Opposition, p. 10 [quoting Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1068]), is equally unavailing. The Court stresses that Plaintiffs characterize DeLong’s “core wrongdoing” as “falsely representing to the Estate that he owned or controlled the liquor license” (Opposition, p. 10) and explain that he did this in connection with his Marvin litigation against the Estate (id. at p. 10; Complaint, ¶ 54).

The basis for Plaintiffs’ Third and Fourth Causes of Action is therefore DeLong’s litigation activity itself, not some other event occurring in temporal proximity to his litigation activity. Plaintiffs’ insistence that they are suing DeLong for “nonexpressive conduct[,]” which they variously identify as his “knowingly false assertion of ownership” (Opposition, p. 11) or “false[] representation[,]” (id. at p. 10), is uncompelling. Neither an “assertion” nor a “representation[]” is capable of being “non-expressive.”

Finally, Plaintiffs argue that the conduct at issue here is illegal and so not protected by the anti- SLAPP statute, relying on Flatley v. Mauro (2006) 39 Cal.4th 299. (Opposition, p. 15.) In Flatley, the Supreme Court held that “where a defendant brings [an anti-SLAPP motion] based on a claim that the plaintiff’s action arises from activity by the defendant in furtherance of the defendant’s exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff’s action.” (39 Cal.4th 299, 320.) “The term ‘illegal’ in Flatley means criminal[.]” (Price v.

Operating Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 971; accord Mendoza v. ADP Screening & Section Services, Inc. (2010) 182 Cal.App.4th 1644, 1654.) Conduct is “illegal as a matter of law” only where the defendant concedes as much or where “uncontroverted and conclusive evidence” demonstrates that it is. (Flatley, supra, 39 Cal.4th 299, 320.) “[I]f a plaintiff claims that the defendant’s conduct is illegal and thus not protected activity, the plaintiff bears the burden of conclusively proving the illegal conduct.” (Cross v.

Cooper (2011) 197 Cal.App.4th 357, 385.) Plaintiffs have neither alleged, nor argued, nor evidenced that DeLong has committed any criminal act.

Having concluded that the Third and Fourth Causes of Action arise out of protected activity in their entirety, the Court turns to the second step of the anti-SLAPP analysis.

Prong Two: Probability of Prevailing – Third and Fourth Causes of Action

Civil Code, section 47, subdivision (b)’s litigation privilege “generally protects from tort liability any publication made in connection with a judicial proceeding.” (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 952.) “ ‘The usual formation [of the privilege] is that [it] applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.’” (Id. at p. 955 [quoting Silberg v.

Anderson (1990) 50 Cal.3d 205, 212].) Where the litigation privilege applies, it “present[s] a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing” at the second step of the anti- SLAPP analysis. (Flatley, supra, 39 Cal.4th 299, 323; see also Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 972, fn. 15 [if the litigation privilege bars the plaintiff’s claim, plaintiff cannot demonstrate a probability of prevailing on the claim, regardless of what evidence plaintiff has presented as to the elements of the cause of action].)

The litigation privilege is not limited to statements made in a courtroom or to the court. It “attaches to any publication that has any reasonable relation to the action and is made to achieve the objections of the litigation even though published outside the courtroom and no function of the court or its officers is involved.” (Pettitt v. Levy (1972) 28 Cal.App.3d 484, 489; accord Silberg, supra, 50 Cal.3d 205, 212; see also Wilton v. Mountain Wood Homeowners Assn. (1993) 18 Cal.App.4th 565, 569.)

Communications between counsel for parties to ongoing litigation fall squarely within the scope of the litigation privilege provided the content of the communication is logically related to the action and directed at achieving the objects of the litigation. (GeneThera, supra, 171 Cal.App.4th 901, 909-910 [settlement letter from one party’s attorney to the opposing party’s attorney amid ongoing litigation]; Geragos v. Abelyan (2023) 88 Cal.App.5th 1005, 324 [email and phone conversations between counsel for the parties in ongoing litigation].)

Plaintiffs’ Third and Fourth Causes of Action sue DeLong, the plaintiff in an ongoing Marvin action against the Estate, for statements he, or his counsel on his behalf, made in direct relation to his pending Marvin claims against the Estate. (Complaint, ¶¶ 53-55 & Exs. C, D, I.) These communications were about DeLong’s purported entitlement to a share of the Estate’s assets, which is the subject of the Marvin litigation, and were aimed at causing the Estate to pay him what he contends he is due, which is the object of the Marvin litigation. (Ibid.; see Silberg, supra, 50 Cal.3d 205, 212.) Plaintiff’s Third and Fourth Causes of Action rest entirely upon communications that are absolutely precluded from serving as a basis for tort liability under the litigation privilege.

Plaintiffs suggest that the litigation privilege does not apply here because DeLong’s “purpose” in making the statements at issue was, they contend, “induc[ing] [the Estate] to breach a preexisting contract with someone else.” (Opposition, p. 15.) But “[t]he litigation privilege is absolute; it applies, if at all, regardless whether the communication was made with malice or the

intent to harm. Put another way, application of privilege does not depend on the publisher’s ‘motives, morals, ethics or intent.’ ” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913 [quoting Silberg, supra, 50 Cal.3d 205, 220].)

Because the Third and Fourth Causes of Action are barred by the litigation privilege, Plaintiffs cannot demonstrate a probability of prevailing on them. The motion is GRANTED as to the Third and Fourth Causes of Action. This moots the remainder of the motion, as discussed above.

All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for August, 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1605267272?pwd=908CbP6TV2mhCAyai1nzo6lyz2dKaw.1

Meeting ID: 160 526 7272 Passcode: 026935

If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov