NENAD MILANOVIC, ET AL. VS. ALICIA CHAN, ET AL.

September 1, 2026 Law and Motion Calendar PAGE 12 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________

2:00 PM LINE 4 24-CIV-02856 NENAD MILANOVIC, ET AL. VS. ALICIA CHAN, ET AL.

NENAD MILANOVIC MATTHEW D. HALEY ALICIA CHAN STEPHEN C. TOSCHI

SPECIAL MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (Anti-SLAPP)

TENTATIVE RULING:

The Special Motion to Strike Pursuant to Code of Civil Procedure Section 425.16 (Anti-SLAPP) by Defendant Yuk Hon Chan (“Defendant”) to the Second Cause of Action for Invasion of Privacy – Intrusion Upon Seclusion in the Third Amended Complaint of Plaintiffs Emma Milanovic, et al. (“Plaintiffs”), is GRANTED.

Although this Motion also purports to be brought on behalf of Defendant Alicia Chan (“Alicia”), the Second Cause of Action is not alleged against her. As such, no cause of action exists against her to strike, and the court limits its ruling to Defendant.

Background

Plaintiffs and Defendant are former next door neighbors. On August 10, 2022, Plaintiff Emma Milanovic (“Emma”), who was four years old at the time, was outside playing with her family when Alicia started to back her vehicle out of the garage at her property where Emma was sitting on the driveway. Alicia struck Emma with her vehicle. Plaintiffs bring this action for the injuries sustained by Emma as well as the rest of the family that observed the accident.

The Third Amended Complaint (“TAC”) filed on May 19, 2026 is the operative pleading. The TAC added a Second Cause of Action for Invasion of Privacy – Intrusion into Private Affairs. This cause of action alleges that on September 17, 2022, without Plaintiffs’ knowledge or consent, Defendant stood in the upstairs bedroom of his home and secretly recorded video and photographs of Plaintiffs in their backyard/back deck. (TAC, ¶ 41.) The TAC alleges that Defendant’s intentional, surreptitious recording and photographing of Plaintiffs while in their backyard/back deck of their residence without their knowledge or consent, intruded upon their seclusion. (TAC, ¶ 39.)

At the time Defendant recorded Plaintiffs, Plaintiffs were engaged in ordinary, intimate family life. (TAC, ¶ 42.) Defendant later disseminated this secret video and photographs to his State Farms claims adjuster, admitting that his purpose in capturing and disseminating the video was to show that Emma seemed to have recovered well and to communicate that assertion to the insurance carrier. (TAC, ¶ 44.) Defendant further acknowledged that he was not directed by anyone to take the video and photographs. (Ibid.)

Plaintiffs allege on information and belief that Defendant took the video and photograph for the primary purpose of attempting to minimize the injuries sustained by Plaintiffs. (TAC, ¶ 45.)

September 1, 2026 Law and Motion Calendar PAGE 13 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________

Defendants move to strike the Second Cause of Action pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP statute).

Legal Framework for Anti-SLAPP

“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).) “Litigation of an anti- SLAPP motion involves a two-step process.” (Bonni v.

St. Joseph Health System (2021) 11 Cal.5th 995, 1009 (Bonni).) “First, ‘the moving defendant bears the burden of establishing that the challenged allegations or claims ‘aris[e] from’ protected activity in which the defendant has engaged.’ Second, for each claim that does arise from protected activity, the plaintiff must show the claim has “at least ‘minimal merit.’” (Bonni, supra, 11 Cal.5th, at p. 1009, citing Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park).) “If the plaintiff cannot make this showing, the court will strike the claim.” (Bonni, supra, 11 Cal.5th at p. 1009, citing Park, supra, 2 Cal.5th at p. 1061.)

Plaintiff’s claim arises from protected activity

To satisfy the “arising from” requirement of Section 425.16, defendants must demonstrate that the protected activity comes within one of the four categories set forth in section 425.16, subdivision (e). (Park, supra, 2 Cal.5th, at p. 1063.) Acts in furtherance of a defendant’s right of petition or free speech in connection with a public issue include: (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; (4) or 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).) Defendant contends that Plaintiff’s claim arises from activity protected under sections 425.16, subdivisions (e)(1) and (e)(2).

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. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884, citing Park, supra, 2 Cal.5th at pp. 1060, 1063.) To determine whether the claim arises from protected activity, the court must consider the elements of the challenged claim and what actions by defendant supply those elements and form the basis of liability. (Wilson, supra, at p. 884.) The court then evaluates whether defendant has shown that those actions fall within one or more of the four categories protected by the anti-SLAPP statute. (Ibid.)

September 1, 2026 Law and Motion Calendar PAGE 14 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________

A privacy violation based on the common law tort of intrusion has two elements: (1) the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy; and (2) the intrusion must occur in a manner highly offensive to a reasonable person. (Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 286.) Thus, this cause of action is based on Defendant’s taking of the video and photographs as intruding into Plaintiffs’ privacy, even though the TAC also alleges that Defendant later disseminated them to Defendant’s insurance company. However, the subsequent dissemination is not an element of this claim, and thus the court does not consider it for purposes of this Motion.

Plaintiffs assert that the secret and covert recordings by Defendant cannot constitute protected activity. (See Kimmel v. Goland (1990) 51 Cal.3d 202; see also Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 445-446.)93 Cal.App.4th 435 206-207.) However, these cases are distinguishable because they involved alleged criminal activity. (See Kimmel, supra, at p. 212; see also Gerbosi, supra, at pp. 444-445.) Plaintiffs do not allege any criminal activity by Defendant here, but rather they allege a common law cause of action for invasion of privacy. It is common that defendants videotape plaintiffs to try to establish that the plaintiffs are not as injured as they claim. (See Cal. Prac. Guide: Civ. Proc. Before Trial, § 8:243 (TRG June 2026 update) [discussing whether work product protection attaches to photos, videos, surveillance films].)

Plaintiffs also contend that Defendant cannot establish protected activity because this claim is based on Defendant’s conduct, and section 425.16(e)(1) and (e)(2) protect a written or oral statement or writing. Plaintiffs read section 425.16 too narrowly. (See Code Civ. Proc., § 425.16, subd. (b)(1) (emphasis added) [“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.”].)

Further, Evidence Code section 250 defines “writing” as “handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.”

Defendant asserts that the act of gathering evidence in anticipation of litigation constitutes protected activity. (See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.) In Briggs, the court found that just as communications preparatory to or in anticipation in the bringing of an action or other official proceeding are within the protection of the litigation privilege under Civil Code section 47(b), such statements are equally entitled to the benefits of section 425.16. (Ibid.) As already discussed, section 425.16(e)(1) and (e)(2) are not limited only to statements, but apply to writings as well. Defendant took the video and photographs after

September 1, 2026 Law and Motion Calendar PAGE 15 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ seeing Emma for the first time after the accident without a cast or sling on her arm, and decided to gather evidence in case a claim followed. (Defendant’s Decl., ¶ 2.)

Plaintiff argues that the video and photographs may not be construed as in anticipation of litigation because Defendant took them in September 2022, but Plaintiff did not file this action until May 10, 2024. However, a prelitigation statement may be petitioning activity even though litigation has not commenced if a statement concerns the subject of the dispute and is made in anticipation of litigation contemplated in good faith and under serious consideration. (Bailey v. Brewer (2011) 197 Cal.App.4th 781, 789-790.)

In determining whether a statement was made in anticipation of litigation contemplated in good faith and under serious consideration, the Bailey court looked at how this test was applied to cases involving the litigation privilege under Civil Code section 47. (Id., at p. 790, citing Flatley v. Mauro (2006) 39 Cal.4th 299, 322–323 [although the scope of § 425.16 and Civ. Code, § 47 are not identical, the latter may be used “as an aid in construing the scope of section 425.16, subdivision (e)(1) and (2) with respect to the first step of the two-step anti-SLAPP inquiry—that is, by examining the scope of the litigation privilege to determine whether a given communication falls within the ambit of subdivision (e)(1) and (2)”].)

If the statement is made with a good faith belief in a legally viable claim and in serious contemplation of litigation, then the statement is sufficiently connected to litigation and will be protected by the litigation privilege. (Ibid.) Further, preliminary investigation into potential or actual litigation also constitutes protected activity. (Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1068-1069.) Defendant’s declaration supports that he took the video and photographs to gather evidence in the event of a claim. (Defendant’s Decl., ¶ 2.)

Plaintiffs provide no evidence to show Defendant took the video and photographs for any other purpose.

Further, plaintiffs’ investigations into whether a viable claim can be asserted and won are protected. (Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1068–1069.) So too should defendants have the right to investigate, including collect evidence, to determine if there is a viable defense.

Accordingly, the court finds that Defendant establishes the alleged conduct constitutes protected activity.

Plaintiffs fail to show that this claim has at least minimal merit

As previously set forth, the elements of a privacy violation based on the common law tort of intrusion has two elements: (1) the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy; and (2) the intrusion must occur in a manner highly offensive to a reasonable person. (Hernandez, supra, 47 Cal.4th at p. 286.) “Actionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.” (Mezger v. Bick (2021) 66 Cal.App.5th 76, 87, citing Hill v.

September 1, 2026 Law and Motion Calendar PAGE 16 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 37.) The impact on the plaintiff's privacy rights must be more than “slight or trivial.” (Ibid.)

As to the first element, the plaintiff must show that the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about the plaintiff. (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231-232.) The plaintiff must have an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source. (Id., at p. 232.) To determine whether such a reasonable expectation of privacy exists, the court considers such factors as (1) the identity of the intruder, (2) the extent to which other persons had access to the subject place, and could see or hear the plaintiff, and (3) the means by which the intrusion occurred. (Sanders v. American Broadcasting Companies, Inc. (1999) 20 Cal.4th 907, 923.)

Defendant took the video and photographs of Plaintiffs while they were on their backyard deck, which was visible from Defendant’s master bedroom. (Defendant’s Decl., ¶ 2.) Defendant’s blinds were open so he did not have to move them to see Plaintiffs. (Ibid.) This deck is adjacent to the publicly accessible Foster City waterway. (Id., ¶ 3; Delkhah Decl., Exh. B.) People have a full view of all decks when they pass by on the waterway. (Id., ¶ 4.) All neighbors have a full view of each other’s decks at all times from their own decks. (Id., ¶ 6.)

Plaintiff responds that Defendant testified that the backyard of his home is a private area, and that a jury could find a reasonable expectation of privacy for Plaintiffs’ fenced backyard. (Haley Decl., Exh. 1, pp. 95:18-19.)

However, considering the factors set forth in Sanders, the court finds that Plaintiff fails to show an objective reasonable expectation of privacy in their backyard from Defendant. First, Defendant lived next door to Plaintiffs and took the video and photographs from his bedroom. Second, Plaintiffs’ deck was also visible from the publicly accessible waterway. Third, the means were the visibility of Plaintiffs’ deck though Defendant’s window. Under these circumstances, the court finds that Plaintiffs fail to show an objectively reasonable expectation of seclusion or solitude from being visible to Defendant.

Moreover, even if the court were to find that Plaintiffs presented some evidence to support Defendant intruded on a place where they had an objectively reasonable expectation of privacy, Plaintiffs fail to provide any evidence that would support the second element. The second element involves a “policy” determination as to whether the alleged intrusion is “highly offensive” under the particular circumstances. (Hernandez, supra, 47 Cal.4th at p. 287.) Relevant factors include the degree and setting of the intrusion, and the intruder's motives and objectives. (Id., citing Shulman, supra, 18 Cal.4th at p. 236.) As already discussed, Defendant took the video and photographs from the bedroom of his own house that overlooked Plaintiff’s backyard to show Emma recovered well following the accident. Therefore, it is difficult to see how taking

September 1, 2026 Law and Motion Calendar PAGE 17 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ such video and photographs to be used in litigation to try to defeat Plaintiff’s claim of injury would be highly offensive to a reasonable person.

The Second Cause of Action is hereby STRICKEN from the TAC.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendants shall prepare a written order consistent with the Court's ruling for the Court's signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.