Lowry vs Saul
Defendant Iain Godfrey Saul’s (Saul) anti-SLAPP motion is GRANTED. Saul’s objections are sustained as to paragraphs 7 and 8 of the declaration of Donald Lowry, and overruled as to the remainder. The first cause of action for fraud and deceit is based on protective activity. (Complaint at pp. 11-12, ¶¶ 2-8.) Statements made during litigation to induce settlement are “made in connection with an issue under consideration or review by a … judicial body” within the meaning of Code of Civil Procedure section 425.16, subdivision (e)(2), and therefore covered by the anti-SLAPP statute. (Navarro v. IHOP Properties, Inc. (2005) 135 Cal.App.4th 834, 842.) This shifts the burden to plaintiffs Donald Lowry and Erica Lowry (plaintiffs) to demonstrate a probability of prevailing. “ ‘[T]he 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.” ’ [Citation.]” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) “The evidence put forward at this stage must be admissible; even allegations in a verified complaint are insufficient.” (Bently Reserve L.P. v. Papaliolios (2013) 218 Cal.App.4th 418, 426.) Plaintiffs have failed to submit sufficient evidence substantiating their claim for fraud and have therefore failed to meet this burden.
Defendants Iain Godfrey Saul, Cheryl Collet Saul aka Cheryl Ann Collet, and Dionne Gonzalez’s demurrer to complaint is MOOT to the extent it concerns the first cause of action for fraud in light of the ruling above and SUSTAINED with 10 days leave to amend as to the second cause of action for violation of Uniform Fraudulent Transfers Act (UFTA). Plaintiffs have failed to allege sufficient facts as to how the defendants, in their individual capacities, are proper parties to the claim.
Moving party to give notice.