Bryan Vu v. Edward Erik Eriksson

Conservatorship of Dennis Cole Makemson 26PR000146

PETITION FOR APPOINTMENT OF PROBATE CONSERVATOR OF THE PERSON AND ESTATE

APPEARANCE REQUIRED

CIVIL LAW & MOTION CALENDAR – Hon. Cynthia P. Smith, Dept. A (Historic Courthouse) at 8:30 a.m.

Bryan Vu v. Edward Erik Eriksson 26CV001045

SPECIAL MOTION TO STRIKE

TENTATIVE RULING: The motion is GRANTED IN PART. The second, third, fourth, and fifth causes of action are stricken from the Complaint pursuant to Code of Civil Procedure section 425.16 (Section 425.16). Paragraphs 14, 15, 16, and 18 of the Complaint are stricken pursuant to Code of Civil Procedure section 436, subdivision (a).

The moving party fails to include, in the notice of this motion, the current version of the Tentative Ruling notice required by Local Rule 2.9, effective 1/1/26. The current version allows a party or counsel to request a hearing by calling the Court or emailing the Court, at JudicialReception2@napa.courts.ca.gov and providing specified information set out in Local Rule 2.9. The moving party is therefore directed to immediately provide, by telephone call AND email, the current Tentative Ruling notice explicitly required by Local Rule 2.9 to opposing party/ies forthwith.

The requirements for requesting oral argument under Local Rule 2.9 remain in effect. However, the Court may grant belated requests for oral argument or continuance of hearing, made by any party who represents it did not timely receive the required notice, regardless of whether or not moving party is present at the hearing.

Defendant Edward Erik Eriksson III moves, pursuant to Code of Civil Procedure section 425.16 (Section 425.16), for an order striking: “The Second Cause of Action (Wrongful Attachment), the Third Cause of Action (Wrongful Denial of Civil Due Process), the Fourth Cause of Action (Intentional Infliction of Emotional Distress), and the Fifth Cause of Action (Negligent Infliction of Emotional Distress), each in its entirety; and [t]he protected-activity allegations within the First Cause of Action (Conversion) and the Sixth Cause of Action (Financial Abuse of a Dependent Adult), specifically paragraphs 14 through 16 and 18 through 19 of the Complaint wherever incorporated into those causes of action The Second, Third, Fourth, and Fifth Causes of action in their entirety.” (Notice of Motion at 2:2-9.)

A. LEGAL BACKGROUND

“The special motion to strike established in section 425.16 may be used to attack a cause of action if (1) the cause of action arises from ‘any act [by the defendant] in furtherance of the person’s right of petition or free speech under the United States or California Constitution,’ and

(2) the defendant was exercising his or her right of free speech ‘in connection with a public issue.’ (Citation.) If the moving defendant establishes those two elements, the burden shifts to the plaintiff to establish there is a probability he or she will prevail on the cause of action.” (Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1511.) “The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability – and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92 (Navellier).)

“[A] complaint is not a SLAPP suit unless the gravamen of the complaint is that defendants acted wrongfully by engaging in the protected activity.” (Drell v. Cohen (2014) 232 Cal.App.4th 24, 30.) “[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. [Citation.] Moreover, that a cause of action arguably may have been ‘triggered’ by protected activity does not entail that it is one arising from such. [Citation.] In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity. [Citations.]” (Navellier, supra, 29 Cal.4th at 89.)

B. LEGAL ANALYSIS

1. The Second Through Fifth Causes of Action Arise from Protected Activities

Mr. Eriksson asserts that “[e]very count addressed in this motion is built on the same protected conduct: Eriksson’s pre litigation demand that a bank freeze the disputed accounts, Eriksson’s petition to a court to recover them, the interpleader that Eriksson’s petition produced, and his recording of a statutorily authorized notice of pending action.” (Support Memo at 5:4-8.)

The Court finds that Mr. Vu’s second through fifth causes of action are clearly based on the demand, by Eriksson’s counsel, to freeze the decedent’s assets, and the recording of the lis pendens relating to the Sacramento Superior Court action.1 (See, e.g., Complaint at ¶¶ 14, 16, 18, 26, 36, and 39.)

“[C]ommunications in connection with anticipated litigation are considered to be ‘“‘under consideration or review by a . . . judicial body.’”’ [Citation.]” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1263.) “[C]ourts have adopted ‘a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.’ [Citation.] ‘“Under 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.”’ [Citation.]

Cases construing the anti-SLAPP statute hold that ‘a statement is “in connection with” litigation under section 425.16, subdivision (e)(2) if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.’ [Citation.]” (Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP

1 It is not apparent, to the Court, that any of Mr. Vu’s second through fifth causes of action are based on “Eriksson’s petition to a court to recover them [or] the interpleader that Eriksson’s petition produced . . ..” (Support Memo at 5:4-8.) However, as these activities are clearly protected activities under Section 425.16, the question appears academic.

(2017) 18 Cal.App.5th 95, 113-114.) “[A]lthough litigation may not have commenced, if a statement ‘concern[s] the subject of the dispute’ and is made ‘in anticipation of litigation “contemplated in good faith and under serious consideration” ‘ [citations] then the statement may be petitioning activity protected by section 425.16.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268 [73 Cal.Rptr.3d 383].)

Here, Mr. Vu alleges that “[t]en days after Decedent’s passing, Defendant, by and through counsel, sent a letter to Susan Davis, Decedent’s financial advisor at JP Morgan Wealth Management (JPMS), demanding that all of Decedent's accounts held at JPMS be frozen in anticipation of litigation by Defendant claiming he held a community property interest in the accounts.” (Complaint at ¶ 14. Italics added.) Moreover, a lis pendens is, by its very nature, a communication made in connection with litigation.

Mr. Erikson argues that “a secret unilateral demand to a financial institution or similar third party to freeze private accounts is not a statement made in, or in connection with, a judicial or official proceeding, nor does it concern a public issue. It is private, noncommunicative conduct effectuating wrongful control over another’s property.” (Opposition at 6:17-20.) The Court agrees that noncommunicative conduct is not protected activity under the anti-SLAPP statute. (See, e.g., Old Republic Construction Program Group v. The Boccardo Law Firm, Inc. (2014) 230 Cal.App.4th 859 (Old Republic).) However, the Court finds no merit in Mr. Erikson’s contention that Mr. Vu’s “demand” was noncommunicative.

The conduct at issue in Old Republic was the withdrawal of funds from an account. (See id. at 869 [“Old Republic’s injury arose from defendants’ withdrawal of the funds that were the subject matter of the stipulation”].) The Old Republic court expressly noted, however, that if plaintiff’s claims had arisen from the parties’ stipulation to not withdraw the funds, “this would bring these causes of action within the statute's protection, because the stipulation was a ‘writing made in connection with an issue under consideration or review by a . . . judicial body.’ (§ 425.16, subd. (e)(2).)” (Id. at 867.)

As noted above, each of Mr. Vu’s second, third, fourth, and fifth causes of action arise out of the demand letter from Mr. Eriksson’s counsel. As Mr. Vu articulates the legal theory, in his Opposition, “[t]he Defendant’s directive to JP Morgan caused a freeze that directly deprived Plaintiff of access and use of the accounts which had lawfully vested in his name alone upon the death of his mother. Plaintiff alleges the freeze followed ‘as a direct result’ of Defendant’s demand to JP Morgan, depriving Plaintiff of access to the accounts.” (Complaint at 6:23-7:3.) The transmission of the demand letter is clearly communicative conduct.

Mr. Vu appears to suggest that the freezing of the accounts itself is the wrongful conduct. Mr. Eriksson, however, did not freeze the accounts. JP Morgan froze the accounts, allegedly in response to Mr. Eriksson’s (attorney’s) conduct (the demand letter).

To the extent Mr. Vu argues that the actionable conduct is the failure by Mr. Eriksson to provide Mr. Vu with notice prior to sending the demand letter to JP Morgan, the argument fails because Mr. Vu fails to provide the Court with authority suggesting that Mr. Eriksson had a duty to provide such notice.

Mr. Vu next asserts that “[a]s set forth in Trilogy Plumbing v. Navigators Specialty Ins. Co. and Semaan v. Mosier, supra, a private directive to third parties to immobilize a nonparty’s accounts prior to the filing of a civil action, is not a demand for relief to an opposing party, not a statement to a tribunal, and not a settlement or demand letter tethered to litigation objectives.” (Opposition at 9:13-16.) The Court can find no support for the assertion in either opinion.2

Finally, Mr. Vu argues that “California Financial Code § 1450 . . . expressly mandates that banks disregard any adverse claim notice and continue honoring a depositor's instruments unless the adverse claimant either presents a qualifying affidavit or obtains a court order.” (Opposition at 11:18-21.) Assuming, arguendo, that this is an accurate summation of the statute, it suggests only that JP Morgan may have acted improperly in response to the demand letter. Nothing in the statute appears, to the Court, to alter the analysis of whether the demand letter itself constituted protected activity under section 425.16.

Based on the foregoing, the Court finds that Mr. Eriksson has carried his burden of showing that the second through fifth causes of action arise out of protected activities.

2. Mr. Vu Fails to Make Any Showing of a Probability of Prevailing

As noted above, upon such showing, “the burden shifts to the plaintiff to establish there is a probability he or she will prevail on the cause of action.” (Chabak v. Monroy, supra, 154 Cal.App.4th at 1511.) “Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Equilon, supra, 29 Cal.4th at 67.) “[I]n order to establish the requisite probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff need only have ‘“stated and substantiated a legally sufficient claim.”’ [Citations.] ‘Put another way, the plaintiff “must 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.”’ [Citations.]” (Navellier, supra, 29 Cal.4th at 88_89.)

Because the burden on the plaintiff is similar to the standard used in determining motions for summary judgment. “[t]he showing must be made through ‘competent and admissible evidence.’ [Citations.] Thus, declarations that lack foundation or personal knowledge, or that are argumentative, speculative, impermissible opinion, hearsay, or conclusory are to be disregarded.” (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26 (Gilbert).) “In making this assessment it is ‘the court’s responsibility . . . to accept as true the evidence favorable to the plaintiff . . ..’ [Citation.]

The plaintiff need only establish that his or her claim has ‘minimal merit’ [citation] to avoid being stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

2 Because the cases do not support the assertion, and further because the citations do not include pincites, this passage in the Opposition appears, to the Court, to be the product of AI technology, the accuracy of which counsel failed to confirm. Counsel is reminded that “[a]lthough there is nothing inherently wrong with an attorney appropriately using AI in a law practice – before filing any court document, an attorney must ‘carefully check every case citation, fact, and argument to make sure that they are correct and proper. Attorneys cannot delegate that role to AI, computers, robots, or any other form of technology.’”] (Noland v. Land of the Free, L.P. (2025) 114 Cal.App.5th 426, 446.)

Through the Opposition brief, Mr. Vu contends that he has made a prima facie showing as to each of the subject claims. (See id. at 12:23, 13:14, 13:19, and 14:10.) Mr. Vu fails, however, to cite to any evidence. Mr. Vu also fails to submit any evidence in support of the Opposition.

Based on the foregoing, Mr. Vu fails to carry his burden of showing a probability that he will prevail on any of the second through fifth causes of action.

3. The Court orders the Individual Allegations Stricken Pursuant to Code of Civil Procedure Section 436

Mr. Eriksson also asks the Court to strike “[t]he protected-activity allegations within the First Cause of Action (Conversion) and the Sixth Cause of Action (Financial Abuse of a Dependent Adult), specifically paragraphs 14 through 16 and 18 through 19 of the Complaint wherever incorporated into those causes of action. (Notice of Motion at 2:6-10.)

Again, “a complaint is not a SLAPP suit unless the gravamen of the complaint is that defendants acted wrongfully by engaging in the protected activity.” (Drell v. Cohen (2014) 232 Cal.App.4th 24, 30.) For purposes of anti-SLAPP analysis, a “so-called ‘mixed cause of action’ . . . combines allegations of activity protected by the statute with allegations of unprotected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 381-82 (Baral).) A special motion to strike may properly be granted as against the claims based on allegations of protected activity, even though such ruling does not dispose of an entire cause of action. (See ibid.)

First, the Court does not find that paragraph 19 is limited to allegations of protected activity. Rather, its reference to “Defendant’s actions as herein alleged” includes the acts alleged in paragraph 13. Mr. Eriksson does not argue that these alleged acts constitute protected activity under the anti-SLAPP statute. As such, the Court finds no grounds for striking paragraph 19, which alleges consequences arising from these various acts.

Moreover, it does not appear to the Court that the allegations of paragraphs 14 through 16 and 18 can, as a matter of law, support either the first or sixth causes of action.

“Essential elements” of a claim for conversion (first cause of action) are that the defendant “exercised dominion over the [personal property] and converted them to his own use.” (Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1507.) It thus does not appear that Mr. Vu could ground a claim for conversion on any of the protected activities discussed above because those activities do not involve his exercising dominion over the respective properties or converting either of them to this own.

As to the elder abuse claim (sixth cause of action), the Complaint alleges that Julie Huong Vu died on January 1, 2026. (See id. at ¶ 8.) It alleges that the subject letter from counsel freezing assets was sent “[t]en days after Decedent’s passing.” (Id. at ¶ 14.) Similarly, Mr. Vue alleges that the Sacramento action was filed on February 19, 2026, and that the lis pendens relating thereto was filed “upon Defendant’s filing of his Petition and Complaint.” (Id. at ¶¶ 15-

16.) Thus, Mr. Vu explicitly alleges that all of the protected activities alleged occurred after Ms. Huong Vu passed away.

The Court is aware of no authority providing that an estate may maintain a claim for elder abuse based on allegations that a defendant took, secreted, appropriated, obtained, or retained real or personal property of an elder after the elder’s death. (See Ring v. Harmon (2021) 72 Cal.App.5th 844, 851.) [“No authority supports the notion that the personal representative of a probate estate, acting in that capacity, has standing to bring an elder abuse claim on behalf of a beneficiary of that estate”].)

Based on the foregoing, Mr. Eriksson fails to show that either the second or sixth cause of action arises out of the protected activities. For this reason, the Court does not have authority to strike paragraphs 14, 15, 16, and/or 18 pursuant to Section 425.16,

However, in light of the Court’s ruling granting Mr. Eriksson’s motion to strike the second through fifth causes of action, the finding that these allegations cannot, as a matter of law, support either of the remaining claims – the first and sixth causes of action – renders the allegations irrelevant. While the Court does not have authority to strike paragraphs 14, 15, 16, and/or 18 pursuant to Section 425.16, it does have authority to strike them pursuant to Code of Civil Procedure section 436 on grounds that they are irrelevant.

Shirley Jo Kilgore v. Piner’s Nursing Home 26CV001142

PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO WRITTEN DISCOVERY, SET ONE; REQUEST FOR SANCTIONS

APPEARANCE REQUIRED.

PROBATE CALENDAR – Hon. Joseph J. Solga, Dept. B (Historic Courthouse) at 8:30 a.m.

Estate of Christopher Matthew Gillespie 19PR000227

FIRST AND FINAL ACCOUNT AND REPORT OF EXECUTOR AND PETITION FOR ITS SETTLEMENT AND FOR FINAL DISTRIBUTION

TENTATIVE RULING: In light of the Supplemental Briefing and Request for Continuance, filed September 3, 2026, the matter is CONTINUED to October 13, 2026, at 8:30 a.m. in Dept. B. By October 6, 2026, Executor and Objector shall each, or jointly, file and serve supplemental briefing as to the status of the matter.

In The Matter of The Ashe Family Trust 20PR000163

8