In the Matter of THE DITMORE REVOCABLE TRUST

SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 13 Honorable Daniel T. Nishigaya R. Belligan, Courtroom Clerk 191 North First Street, San Jose, CA 95113 Telephone: 408-882-2240

DATE: August 28, 2026 TIME: 10:00 A.M. TO CONTEST A TENTATIVE RULING, YOU MUST CALL (408) 808-6856 BEFORE 4:00 P.M. ON THE DAY PRIOR TO THE HEARING. You must also inform all other sides to the issue before 4:00 P.M. the day prior to the hearing that you plan to contest the ruling. The Court will not hear argument, and the tentative ruling will be adopted if these notifications are not made. (Cal. Rule of Court 3.1308(a)(1); Civil Local Rule 8.D.)

LINE # CASE # CASE TITLE RULING LINE 1 23PR195217 In the Matter of THE DITMORE Special Demurrer for Uncertainty REVOCABLE TRUST Ctrl Click (or scroll down) on Line 1 for tentative ruling. LINE 2 23PR195217 In the Matter of THE DITMORE Anti-SLAPP Motion REVOCABLE TRUST Ctrl Click (or scroll down) on Line 1 for tentative ruling. LINE 3 24PR198752 In the Matter of THE KATEN LIVING Motion for Vilation of Court Order and TRUST Sanctions

Ctrl Click (or scroll down) on Line 3 for tentative ruling.

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Case Name: In the Matter of THE DITMORE REVOCABLE TRUST Case No.: 23PR195217

INTRODUCTION

In 1982, settlors Meredith Ditmore (“Ditmore”) and her husband, Carl Ditmore, who is now deceased, executed the Ditmore Revocable Trust.

On July 19, 2023, in docket 23PR195111, entitled the Ditmore Revocable Trust, David Kennedy (“Kennedy”),1 filed an ex parte petition (without notice) to appoint a private fiduciary, Russell H, Marshall (“Interim Trustee”) as temporary trustee. Kennedy explained that Meredith Ditmore (“Ditmore”), one of the trustors and then-trustee had experienced an injury that rendered her incapacitated. On July 19, 2023, the court (Hon. Jacqueline Arroyo) issued an order appointing Interim Trustee pending further order of the court.

On July 10, 2023, in docket 23PR195217, also entitled the Ditmore Revocable Trust, Kennedy filed a petition to invalidate a purported 2022 trust amendment Kennedy claims was made at a time when Ditmore lacked capacity to make such a change, to remove Ditmore as trustee and appoint Kennedy as successor trustee, to impose a constructive trust, and for financial elder abuse (“2023 Petition”). The 2023 Petition alleged that Respondent Allan Miller (“Miller”), Ditmore’s nephew, took Ditmore to the office of Respondent Mark Duvall (“Duvall”), Ditmore’s long time financial advisor, where Miller and Duvall made interlineations and handwritten notations on a copy of the 2016 restatement of the trust. Ditmore signed that copy, which replaced Kennedy with Miller and Duvall as successor trustees, deleted certain beneficiaries, and added Miller as a beneficiary.

On February 11, 2026, Ditmore, via her court-appointed guardian ad litem, Rebecca Weisman (“Weisman”), filed a petition to validate a fifteenth amendment to the trust executed on July 18, 2025 (“Weisman’s Petition”). On May 21, 2026, Kennedy filed an objection to Ditmore’s February 11 petition and a cross-petition to invalidate the fifteenth amendment and for a finding of elder abuse by Weisman, Miller, and Duvall (“Cross-Petition”).

On June 22, 2026, Duvall filed a combined demurrer targeting the financial elder abuse claim in the Cross-Petition and motion for judgment on the pleadings targeting financial elder abuse claim in the 2023 Petition. On July 1, 2026, Miller filed a special demurrer for uncertainty also targeting the Cross-Petition. On July 17, 2026, Weisman filed a demurrer, on behalf of herself and as guardian ad litem, also targeting the financial elder abuse claim in the Cross-Petition. Also on July 17, 2026, Weisman filed an anti-SLAPP motion, on behalf of herself and as guardian ad litem, seeking dismissal of the financial elder abuse cause of action, or, alternatively, certain specified paragraphs in the Cross-Petition.

On July 24, 2026, Kennedy filed a first amended Cross-Petition (“FACP”).

1 Kennedy was named as successor trustee in the fourteenth amendment to the trust instrument, executed in 2016 by both settlors.

Currently before the Court are the special demurrer for uncertainty by Miller and anti- SLAPP motion by Weisman. Kennedy has opposed the anti-SLAPP motion and Weisman has filed a reply. 2 No opposition has been filed to the demurrer.

DISCUSSION I. THE SPECIAL DEMURRER FOR UNCERTAINTY IS MOOT

As mentioned above, after both the Miller demurrer was filed, Kennedy filed an amended Cross-Petition. Accordingly, the demurrer is MOOT. (Code Civ. Proc., § 472, subd. (a) [plaintiff may file an amended complaint without leave of court and despite the filing of a demurrer until the time to file an opposition to a demurrer has passed]; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054 [the filing of an amended complaint renders a demurrer to the prior complaint moot]; State Compensation Ins.

Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131 [“the filing of an amended complaint moots a motion directed to a prior complaint”]; see also Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884 [“ ‘It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading. [Citations.]’ [Citations.]”].)3 II. WEISMAN’S ANTI-SLAPP MOTION A. REQUESTS FOR JUDICIAL NOTICE AND EVIDENTIARY OBJECTIONS

In connection with the motion, Weisman requests judicial notice of (1) the Order Appointing Temporary Trustee filed in docket 23PR195111, (2) the reporter’s transcript of the proceedings from the August 23, 2024 status conference hearing in the instant case, (3) the second amended notice of hearing on Weisman’s Petition filed on April 17, 2026, (4) Kennedy’s Response and Objections to Weisman’s Petition, (5) the fact that That no individual or entity, potential beneficiary or trustee, who received notice of Weisman’s Petition objected to it other than Kennedy, (6) Kennedy’s request for judicial notice and exhibits thereto filed on May 21, 2026 in conjunction with the Cross-Petition in this case.

The Court GRANTS judicial notice of items 1 through 4 and 6 with the caveat that while the court is free to take judicial notice of the existence of a document in a court file, it may not take judicial notice of the truth of hearsay statements contained therein. (Evid. Code, § 452, subd. (d); Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882; see also Intengan v.

2 Weisman filed a notice of objection to the filing of the first amended Cross-Petition asserting that the anti-SLAPP motion is not mooted by the filing of an amended pleading. Kennedy filed the declaration of his counsel requesting time to file an opposition to the anti-SLAPP motion and Weisman filed the declaration of his counsel in reply. The Court concluded that the demurrer was not moot and continued the hearing on the anti-SLAPP motion to allow Kennedy to file an opposition. (See Order re: (1) Demurrer to Cross-Petition; (2) Anti-SLAPP Motion; (3) Respondent Mark Duvall’s Demurrer and Motion for Judgment on the Pleadings, pp. 3:18- 7:6.) The Court also indicated that it would consider the anti-SLAPP motion based on the language contained in the original Cross-Petition. (Id. at p. 6:4-6.) 3 All further undesignated statutory references are to the Code of Civil Procedure. 4

BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1057 [court may take judicial of existence of declaration but not of facts asserted in it].) As to request 5, the fact that no one else objected to the Weisman’s Petition can be gleaned from the register of actions in the instant case. Accordingly, the Court GRANTS judicial notice of item 5. (See Evid. Code, § 452, subds. (d), (h).)

In reply, Weisman requests judicial notice of the Court’s Order re: (1) Demurrer to Cross-Petitioner; (2) Anti-SLAPP Motion; (3) Respondent Mark Duvall’s Demurrer and Motion for Judgment on the Pleadings filed in the instant case on August 12, 2026. Because the order did not exist at the time Weisman filed the motion, this request does not violate the prohibition on new evidence presented in reply. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38 [“The general rule of motion practice . . . is that new evidence is not permitted with reply papers.”].) The order is also the proper subject of judicial notice under Evidence Code section 452, subdivision (d). Accordingly, the request for judicial notice is GRANTED.

Kennedy requests judicial notice of (1) his ex parte petition filed in docket 23PR195111, (2) six declarations filed in support of the ex parte petition in docket 23PR195111, (3) his request to dispense with notice of the ex parte petition, and (4) the order appointing temporary trustee. All of these documents were filed on July 19, 2023. The Court grants judicial notice of items 1, 3 and 4, with the same caveat addressed above. (Evid. Code, § 452, subd. (d).) Weisman has interposed evidentiary objections to certain of the documents of which Kennedy seeks judicial notice in support of his opposition to the motion.

These are the declarations of Stephanie Thompson (Ex. 9A) and Kelly Mahmoud (Ex. 9E). The Court DENIES judicial notice of all of the declarations as they relate to the second step of the anti- SLAPP analysis, which the Court does not reach. For the same reason, the Court declines to rule on Weisman’s evidentiary objections. B. LEGAL BACKGROUND

Code of Civil Procedure section 425.16 provides a summary procedure by which defendants may dispose of “strategic lawsuits against public participation” or “SLAPP” lawsuits, i.e. lawsuits brought “primarily to chill the valid exercise of constitutional rights of freedom of speech and petition for the redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).)4 The moving party bears the initial burden to make a threshold showing that the challenged cause of action arises from acts that were taken in furtherance of the defendant’s right of petition or free speech under the U.S.

Constitution or the California Constitution in connection with a public issue. (Id., at subd. (b); see also Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 67 (Equilon).) If such a showing is made, the anti-SLAPP motion will be granted only where the opposing party fails to demonstrate a probability of prevailing on the claim. (Code Civ. Proc., § 425.16, subd. (b)(1).)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a ‘summary-judgment-like procedure.’ [Citation.] The court does not weigh evidence or

4 All further undesignated statutory references are to the Code of Civil Procedure. 5

resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ [Citation.]” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385, footnote omitted (Baral).)

Explained differently, “[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.” (Baral, supra, 1 Cal.5th at p. 396.) C. MERITS OF THE MOTION

Weisman moves to strike the second cause of action (financial elder abuse) in the Cross-Petition. Alternatively, she seeks to strike certain specific paragraphs in the Cross- Petition, which she argues relate to petitioning activity. A. FIRST STEP

At the first step, the moving party must show that the challenged claim arises from an “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ.

Proc., § 425.16, subd. (e).) “ ‘Filing a lawsuit is an act in furtherance of the constitutional right of petition, regardless of whether it has merit. [Citations.]’ [Citation.]” (Trapp v. Naiman (2013) 218 Cal.App.4th 113, 120.)

“[A] claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060 (Park).) “A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.] Critically, ‘the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right

of petition or free speech.’ [Citations.] ‘[T]he 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.’ [Citations.] Instead, the focus is on determining what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’ [Citation.]” (Id. at pp. 1062-1063.) At the first step of the analysis, “the focus is on determining what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’ [Citation.] ‘The only means specified in [Code of Civil Procedure] section 425.16 by which a moving defendant can satisfy the [“arising from”] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e)....’ [Citation.]

In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” (Id. at p. 1063.)

“At 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.” (Baral, supra,1 Cal.5th at p. 396.)

At the first step of the anti-SLAPP analysis, Weisman contends that the second cause of action arises from petitioning activity in that the fifteenth amendment must be approved by the Court in order to have legal effect. Weisman relies on Cabral v. Martins (2009) 177 Cal.App.4th 471 (Cabral). In that case, an ex-husband owed his former wife, Cabral, child support, which had been reduced to a judgment. (Id. at p. 476.) The ex-husband’s mother (Edwina) hired an attorney, Martins, who updated her estate plan to “essentially disinherit” the ex-husband. (Ibid.)

After Edwina passed away, Martins lodged her will with the Court. (Ibid.) Cabral sued Martins and others alleging violations of the child support evasion statutes. (Id. at p. 477.) Many of the defendants filed anti-SLAPP motions, which the trial court granted, and Cabral appealed. (Id. at pp. 477-478.) The Court of Appeal determined that Cabral pled facts relating to three categories of activities by Martins, including, as relevant here, “(1) Martins’s revision of Edwina’s estate planning documents (the will revision); [and] (2) Martins’s lodging of Edwina’s will with the probate court and his initiation of proceedings to probate her estate and administer her trust (the probate proceedings)” (Id. at p. 479.)

As to the latter category, the court concluded that this clearly encompassed protected petitioning activity because “[u]nder the plain language of section 425.16, subdivision (e)(1) and (2), as well as the case law interpreting those provisions, all 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. [Citations.]” (Id. at pp. 479-480.)

As to the former category, the Cabral court noted that “[c]ase law establishes that communications that are intimately intertwined with, and preparatory to, the filing of judicial proceedings qualify as petitioning activity for the purpose of the anti-SLAPP statute. [Citations.]” (Cabral, supra, 177 Cal.App.4th at p. 482.) It went on to state, “In the present case, the will revision was of no effect in and of itself, but only insofar as it was later implemented through the probate proceedings. Accordingly, the will revision was also protected activity under the anti-SLAPP statute. Even if not, it was only incidental to the 7

subsequent protected activity, thus rendering [Cabral’s] entire cause of action subject to a special motion to strike.” (Id. at p. 483.)

Kennedy does not dispute that the filing of Weisman’s Petition constitutes protected activity but she asserts that the elder abuse cause of action does not arise from the filing of Weisman’s Petition. He relies on Greco v. Greco (2016) 2 Cal.App.5th 810 (Greco), in which a beneficiary of her deceased parents’ trust sued her brother in civil court for elder abuse, and in probate court for breaches of fiduciary duty. (Id. at pp. 816-817.) In both actions, the sister alleged the brother, as trustee, filed litigation against her in bad faith and for improper reasons, and wrongfully used trust and estate funds to pursue said litigation. (Ibid.)

In her breach of fiduciary duty claim, the sister alleged her brother “ ‘engaged in a course of conduct ... fomenting litigation and other wrongful acts, against ... beneficiaries of the Trust and/or estate, in an attempt to disinherit them ... and/or prevent questioning of his actions.’ ” (Id. at p. 817.) The brother filed anti-SLAPP motions, which the trial court denied, finding that the anti- SLAPP statute did not apply. (Id. at p. 818.) The Court of Appeal affirmed, explaining “[t]he activity that gave rise to [the brother’s] asserted liability was the taking . . .

The activity itself does not have to be wrong or illegal. Funding the litigation solely to pursue a vendetta was the reason the activity (i.e., the taking) was allegedly wrongful . . . The test under section 425.16 focuses on the ‘the [sic] defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’ [Citation.]” (Greco, supra, 2 Cal.App.5th at pp. 823-824.)

In Gaynor v. Bulen (2018) 19 Cal.App.5th 864, 877-878 (Gaynor), on which Kennedy also relies, the court explained “The only means specified in section 425.16 by which a moving defendant can satisfy the [arising from] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . ...[Citation.]” (Internal quotation marks omitted.) In Gaynor, “[t]he Gaynor beneficiaries alleged a single breach of fiduciary duty cause of action against James, claiming he participated with the Cotrustees to take actions that would wrongfully benefit the senior beneficiaries to the detriment of the Gaynor beneficiaries and other more junior beneficiaries.

Within that cause of action, the Gaynor beneficiaries identified about 25 examples of wrongful conduct that reflected James’s alleged breach of fiduciary duty. (Id. at p. 879.) In certain paragraphs of the petition, “the Gaynor beneficiaries alleged that the Cotrustees and James violated their statutory duties of loyalty and fair treatment by ‘wasting Trust assets’ on legal fees and costs to pursue the [previously filed] Petition to Modify, Petition to Appoint, Petition to Construe, and the mediation; and wrongfully forced the Gaynor beneficiaries to spend funds to oppose/defend these petitions and activities.” (Ibid.)

The Gaynor court explained, “We agree that filing petitions, motions, and briefs in court (and/or assisting in the filing) are protected petitioning activities under the anti-SLAPP statute. [Citations.] But the Gaynor beneficiaries’ breach of fiduciary claim was not based on these protected activities. According to the allegations of the Second Amended Petition and the submitted evidence, the Cotrustees (with [the family member’s] advice and assistance) filed the prior probate petitions and motions as part of their plan to change the trustee succession rules to allow the Cotrustees to operate and control the Trust to advantage a select portion of the beneficiaries.

Thus, the activity giving rise to the Gaynor beneficiaries’ alleged harm was the breach of loyalty in formulating and pursuing this plan and the improper use of Trust assets to wrongfully benefit James and the Cotrustees. Although the alleged breach of loyalty may have been carried out by the filing of probate petitions, it was not the petitioning activity itself that is 8

the basis for the breach of fiduciary claim. (See Park, supra, 2 Cal.5th at p. 1066 [‘while [the alleged wrongful conduct] may be carried out by means of [protected] speech ..., [this] circumstance [does not] transform[] [the] suit to one arising from speech’].) The litigation activities (e.g., the filing and/or defense of the Petitions to Modify, Appoint, and Construe) would provide evidence of the alleged breaches of fiduciary duty, but the filing of these petitions was not necessary to establish this portion of the breach of fiduciary duty claim. (See id. at p. 1068.)” (Gaynor, supra, 19 Cal.App.5th at p. 880.)

In White v. Davis (2023) 87 Cal.App.5th 270 (White), which neither party cites, the petitioner (White) applied for financial elder abuse restraining orders based on allegations that the defendants unduly influenced trust settlor, Thomas, to change his estate plan. (Id. at p. 282.) The defendants filed an anti-SLAPP motion, which the trial court denied. (Id. at p. 275.) The Court of Appeal affirmed the denial of the motion, concluding that “White’s allegations against defendants are predicated on [Thomas’s wife] Gloria and [Gloria’s daughter] Wear’s actions to (1) isolate Thomas, (2) control the individuals who have access to him (including his biological family members, people who had worked for him for a number of years in his home, and prior attorneys), and (3) influence his understanding of and opinions concerning the conservatorship and his estate plan to support nonappointed counsel and Carpenter procuring an amendment to the living trust independent of the conservatorship and the probate court.

The purpose of these actions is to unlawfully alter Thomas’s decades-long estate plan in favor of defendants and to the detriment of Thomas’s biological family members. While defendants’ various litigation activities are protected petitioning activities under the anti-SLAPP statute, their plans to unduly influence Thomas and change his estate plan are not. As in Gaynor, defendants’ litigation activities merely evidence their nefarious actions to control Thomas through isolation, confusion, and mental suffering designed to overcome his free will.” (White, supra, 87 Cal.App.5th at pp. 289-290.)

Here, the original Cross-Petition alleges that Weisman took Ditmore to an estate planning attorney, with knowledge of Ditmore’s incapacity and without permission from the Court, and caused her to execute the fifteenth amendment. (See Cross-Petition, ¶¶ 7, 9-11, 13, 25, 27.) It also alleges that Weisman hired a retired doctor to report that Ditmore has capacity but that the doctor used a cognitive screening tool rather than a neuropsychological assessment to determine capacity. (Id. at ¶ 26.) The Cross-Petition also asserts that Weisman filed a report that requested multiple orders from the Court, including a request to take Ditmore to an estate planning attorney to update her trust, that Weisman appeared at hearings in the instant case but did not apprise the Court that she planned to and did take Ditmore to the attorney. (Id. at ¶¶ 23, 32, 35.)

The Cross-Petition then states, “Cross-respondents WEISMAN, DUVALL, and MILLER continued to conceal the fact of the purported 15th Amendment’s execution from the Court, temporary trustee MARSHALL and cross-petitioner until the GAL filed her petition to approve it on February 11, 2026, three weeks after Judge Duong rotated off the probate bench and less than two weeks prior to the mediation.” (Id. at ¶ 37.) It further states, “The purported 15th Amendment, if valid, would dispose of the claims in cross-petitioner’s 2023 petition without adjudication.” (Id. at ¶ 34.)

Here, unlike in Cabral, the defendant who took the alleged injurious actions was not acting in the capacity as an attorney, but as a guardian ad litem. Weisman is not alleged to have drafted the challenged trust amendment but to have taken Ditmore to an attorney to facilitate the execution of the amendment. Unlike in Greco, the completed wrong is not the taking of funds but the change to the estate plan. (See Cross-Petition, ¶ 52 [“As a direct and proximate 9

result of cross-respondents’ wrongful conduct, DITMORE has been harmed in that she has been deprived of her property rights. See, e.g. White v. Wear (2022) 76 Cal.App.5th 24, 41-42 (procurement or assistance in procurement of a purported trust amendment by undue influence supports a claim for financial elder abuse).”].) The Court finds that the instant case is most similar to Gaynor and White in that the petitioning or litigation activity, the filing of Weisman’s Petition, is the means by which the alleged wrongful scheme was accomplished.

Nonetheless, the reasoning in Cabral requires further discussion. As mentioned above, the Cabral court began its discussion regarding the estate planning activity by noting that courts have held that “communications that are intimately intertwined with, and preparatory to, the filing of judicial proceedings qualify as petitioning activity for the purpose of the anti- SLAPP statute.” (Cabral, supra, 177 Cal.App.4th at p. 482.) It went on to conclude that “the will revision was of no effect in and of itself, but only insofar as it was later implemented through the probate proceedings.” (Id. at p. 483.)

Here, although Weisman contends that the fifteenth amendment is without effect until the Court approves it, she cites no authority for that proposition and it is not clear that court approval is required for Ditmore to change her estate plan. It is clear that Weisman has filed a petition for approval of the fifteenth amendment, a prudent action where Kennedy’s 2023 petition had challenged the validity of a prior attempt to amend the trust and where allegations of Ditmore’s incapacity had been made.

However, unlike with a will, which would generally be validated through probate proceedings, trust administration does not necessarily require court approval. Moreover, the settlor of a revocable trust may amend the trust without court approval either by the method specified in the trust instrument or the statutory method if the trust’s method is not exclusive. (Prob. Code, §§ 15401, subd. (a) [trust may be revoked either as stated in the trust instrument or via the statutory method]; 15402 [“Unless the trust instrument provides otherwise, if a trust is revocable by the settlor, the settlor may modify the trust by the procedure for revocation.”]; Haggerty v.

Thornton (2024) 15 Cal.5th 729, 733 [“under section 15402, a trust may be modified via the section 15401 procedures for revocation, including the statutory method, unless the trust instrument provides a method of modification and explicitly makes it exclusive, or otherwise expressly precludes the use of revocation procedures for modification”].) Here, no party addresses whether Ditmore has authority to amend the trust under the terms of the trust or via the statutory method. No adjudication of Ditmore’s incapacity has occurred and the Court is aware of no guardianship proceedings involving Ditmore.

Under these circumstances, it is not clear that court approval is necessary for the fifteenth amendment to take effect in the same way that a will would not take effect until it is probated.

The Cabral court also held, in the alternative, that if the estate planning activity was not protected activity, “it was only incidental to the subsequent protected activity, thus rendering [Cabral’s] entire cause of action subject to a special motion to strike.” (Ibid.) Kennedy contends that this is the Cabral court walking back from its initial holding that the estate planning activity was preparatory to the litigation activity. But, the Court views this statement as an alternate basis for Cabral’s holding regarding the estate planning activity.

The Cabral court indicated that the estate planning activity was only incidental to the litigation/petitioning activity. Here, however, it would appear that the opposite is true. As discussed above, it appears to the Court in this case that the elder abuse cause of action arises from Ditmore’s alleged procurement of the fifteenth amendment and not the filing of the petition to validate same. “ ‘[I]f the allegations of protected activity are only incidental to a cause of action based essentially on nonprotected activity, the mere mention of the protected activity does not subject the cause of action to an anti-SLAPP motion. [Citation.]’ [Citation.]” (Peregrine Funding, Inc. 10

v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672; Baral, supra, 1 Cal.5th at p. 394 [“Assertions that are ‘merely incidental’ or ‘collateral’ are not subject to section 425.16.”].)

The Court concludes that the elder abuse cause of action is a “mixed cause of action” – “that is, a cause of action that rests on allegations of multiple acts, some of which constitute protected activity and some of which do not.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010 (Bonni), citing Baral, supra, 1 Cal.5th at p. 382.) Under such circumstances, “[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.” (Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 43-44 (Newport).) Here, if the unprotected activity is disregarded, it is clear that the elder abuse cause of action does not arise from protected activity.

The elder abuse cause of action is complete in itself when the amendment was executed. Accordingly, the Court finds that the elder abuse cause of action is not subject to the motion to strike and that the motion fails at the first step of the analysis.

In the alternative, Weisman argues that certain specific allegations should be stricken. Those allegations are reproduced below: 34. The purported 15th Amendment, if valid, would dispose of the claims in cross-petitioner’s 2023 petition without adjudication.

37. Cross-respondents WEISMAN, DUVALL, and MILLER continued to conceal the fact of the purported 15th Amendment’s execution from the Court, temporary trustee MARSHALL and cross-petitioner until the GAL filed her petition to approve it on February 11, 2026, three weeks after Judge Duong rotated off the probate bench and less than two weeks prior to the mediation. RJN Exhibits 5 and 6.

49. In doing the acts alleged above cross-respondents obtained one or more property rights from MS. DITMORE or assisted in doing so.

50. In the alternative, cross-respondents obtained or assisted in obtaining one or more property rights from MS. DITMORE via undue influence, which MS. DITMORE was unable to resist. [Prayer for Relief] 5. Rebecca F. Weisman procured the purported 15th Amendment by fraud and undue influence within the meaning of Welf. Inst. C. §§ 15610.30 and 15610.70 while acting outside the scope of her authority as a guardian ad litem. (Cross-Petition, ¶¶ 34, 37, 49, 50, prayer for relief, ¶ 5.)5

5 As mentioned in the Court’s order continuing the anti-SLAPP motion, the Court is considering the original version of the Cross-Petition because the numbering of the paragraphs is different in the FACP and the motion refers to the original Cross-Petition but the substance is the same. 11

“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, supra, 11 Cal.5th at p. 1010, citing Baral, supra, 1 Cal.5th at pp. 393-395.) “The Legislature’s choice of the term ‘motion to strike’ reflected the understanding that ‘an anti-SLAPP motion, like a conventional motion to strike, may be used to attack parts of a count as pleaded.’ [Citation.]

Thus, an anti-SLAPP motion may be used to attack specific allegations constituting a claim within a pleaded count. If the targeted claim amounts to a cause of action ‘in the sense that it is alleged to justify a remedy,’ it is subject to an anti-SLAPP motion. [Citation.]” (Newport, supra, 23 Cal.App.5th at p. 43.)

“Baral did not dispense with the requirement that a claim must arise out of protected activity in order to be subject to an anti-SLAPP motion. Assertions that are merely incidental or collateral are not subject to section 425.16. Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti- SLAPP statute. [Citation.]” (Newport, supra, 23 Cal.App.5th at p. 43, internal quotation marks omitted.)

Here, even assuming the first step burden were met, the Court cannot strike the individual paragraphs identified by Weisman. “At 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.” (Baral, supra, 1 Cal.5th at p. 396.)

Paragraphs 34 and 37 would support both the challenged elder abuse cause of action and the unchallenged first cause of action to invalidate the fifteenth amendment. Because Weisman has not challenged the first cause of action and the second step arguments she raises only apply to the second cause of action, the burden did not shift to Kennedy to establish the probability of prevailing as to the first cause of action. As to paragraphs 49 and 50, these are pled within the second cause of action, but, they do not themselves refer to protected activity. Finally, as the Court has found that the elder abuse cause of action is not subject to the motion to strike, it cannot strike the portion of the prayer for relief seeking relief based on that cause of action. The anti-SLAPP motion is DENIED. D. WEISMAN’S REQUEST FOR ATTORNEY FEES

Code of Civil Procedure section 425.16, subdivision (c) provides that “a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s 12

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.” Here, because the motion is denied, Weisman’s request for fees is also DENIED. CONCLUSION

The demurrer filed by Miller is MOOT. Weisman’s anti-SLAPP motion is DENIED. Weisman’s request for fees is also DENIED.

The Court will prepare the final order.

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