Filed 10/22/26 Martin v. Schmidt CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JANEEN MARTIN, D086441
Plaintiff and Respondent,
v. (Super. Ct. No. 24CV008708C)
LINDA SCHMIDT, Individually and as
Trustee, etc.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Gregory W. Pollack, Judge. Reversed with instructions.
Weintraub Tobin Chediak Coleman Grodin, Brendan J. Begley, Josiah
M. Prendergast, and Ruby I. Bitzer for Defendant and Appellant.
Chhokar Law Group and Gian N. Ducic-Montoya for Plaintiff and
Respondent.
I. INTRODUCTION
Stepsisters Janeen Martin and Linda Schmidt inherited joint interests
in their parents’ house. After the probate court ordered the sale of that house
in a partition action, Martin sued Schmidt for delaying the sale thereby
causing lost profits. Schmidt responded with an anti-SLAPP motion, which
the trial court denied, finding that Martin established a probability of
prevailing on her claims. Schmidt appealed.
The wrongs alleged in Martin’s complaint are Schmidt’s
misrepresentations made in connection with the partition action and
Schmidt’s assertions of her position in that litigation. Those acts are
protected by the anti-SLAPP statute and the litigation privilege. The trial
court therefore erred in denying the motion, and we reverse that order. On
remand, the trial court shall enter an order striking Martin’s complaint, and
it shall address Schmidt’s request for attorney fees.
II. BACKGROUND
A. Prior Trust Litigation
Robert Ford and Doris Ford executed the Ford Living Trust on August
11, 1993 (Trust). Mr. and Ms. Ford transferred their residence, located at
413 San Placido Court in Escondido (Property), into the Trust.1
Upon Ms. Ford’s death in 2017, the Trust split into two subtrusts: the
Survivor’s Trust and the Family Trust. Schmidt is the beneficiary of the
1 We grant Martin’s unopposed request for judicial notice of the Affidavit
of Death of Co-Trustee recorded in the Property’s chain of title on October 27,
2017. (Evid. Code, § 452, subd. (c).) Martin’s request for judicial notice of the
quitclaim deed regarding the Property recorded on October 27, 2017, is
denied because that deed is already in the record.
2
Survivor’s Trust while Martin and her sister Oriole Kathleen Yvonne Adams-
Harris are equal beneficiaries of the Family Trust. Title to the Property was
split evenly between the Survivor’s Trust and the Family Trust as tenants in
common.
On October 13, 2020, Martin filed a petition seeking to quiet title to the
Property. The petition alleged that title to the Family Trust’s interest in the
Property was held by Mr. Ford as trustee, but he had resigned from that
position and appointed Geraldine Donnelly in his place.2 Martin sought an
order declaring Donnelly, as trustee of the Family Trust, the owner of
50 percent of the Property, as well as damages due to Mr. Ford and
Donnelly’s alleged failure to transfer assets into the Family Trust.
What became of Martin’s petition is unclear from the record, but at
some point and for unknown reasons, Martin and Adams-Harris each
obtained 25 percent interests in the Property in their individual capacities.
Schmidt disputed the validity of those transfers; that matter was pending
before the Probate court as late as September 20, 2021. Martin and Adams-
Harris eventually transferred those interests back to the Family Trust in
deeds recorded on March 28, 2022.
Following Mr. Ford’s death on January 10, 2021, Schmidt became the
sole trustee of the Survivor’s Trust. In that capacity, on July 20, 2021,
Schmidt filed a petition to return property to the Survivor’s Trust. Amongst
the relief sought was reimbursement from the Family Trust regarding
expenses for the Property.
2 Donnelly became the Family Trust trustee in July 2020. Apparently, at
the time Martin’s petition was filed, this change in trusteeship was not
reflected in the Property’s chain of title.
3
On June 7, 2022, Donnelly, as trustee of the Family Trust, filed a
petition for partition by sale regarding the Property (Partition Petition). The
Partition Petition named Schmidt, individually and as trustee of the
Survivor’s Trust, as respondent, and alleged that she refused to cooperate in
buying out the Family Trust’s interest or selling the Property.
On August 10, 2022, the parties agreed to continue the hearing on the
Partition Petition. On September 19, 2022, Donnelly filed an ex parte
petition for authority to list the Property for sale. The probate court granted
the petition, ordered the parties to meet and confer regarding selection of a
realtor, and continued the matter to September 27, 2022. On September 27,
2022, the probate court granted Donnelly’s ex parte petition to retain Jeff
Pastore as the listing agent.
Schmidt executed a listing agreement for the Property in October 2022.
A married couple named Andrew Schmidt and Karen Schmidt3 purchased
the Property, contingent on the court’s approval.4 On January 13, 2023,
Donnelly filed an ex parte petition seeking to approve the sale and to recover
from Schmidt all costs and attorney fees associated with the sale.
The probate court approved the sale on January 20, 2023, and partially
granted Donnelly’s request for costs and attorney fees on June 14, 2024. The
probate court refused to allocate costs and fees solely because Schmidt did
not agree to the sale. However, the court found that Schmidt’s position
regarding the listing agent did not have merit and therefore awarded costs
and fees related to the resolution of that issue.
3 See footnote 7, post.
4 The record does not specify the date of this transaction.
4
Donnelly resigned as trustee of the Family Trust on September 13,
2022. Martin accepted that role a few days later.
B. The Current Complaint and Anti-SLAPP Motion
On August 30, 2024, Martin initiated the current action against
Schmidt. In her first cause of action, labeled “Intentional Tort,” Martin
alleged as follows. Around March 2022, Schmidt “began making false
representations regarding her intent to purchase” the Family Trust’s half-
interest in the Property. Schmidt’s conduct caused Donnelly to file the
Partition Petition, after which Linda “made subsequent intentional
misrepresentations about her willingness to cooperate in the sale of the
[P]roperty.” Schmidt also refused to cooperate in listing the Property for sale
despite the court’s order to do so. Through these acts, Schmidt intentionally
delayed the Property’s sale, causing a $400,000 loss in value so Schmidt could
secure the Property for herself or her family at a lower price.
The complaint’s second cause of action for fraud is based on the same
circumstances. Under that cause of action, Martin alleged that between July
and November of 2022, Schmidt intentionally misrepresented her intent to
purchase the Property, as well as her intent and willingness to cooperate
with the sale or comply with court orders. Martin alleged that Donnelly
relied on those misrepresentations, causing delay and a $400,000 reduction
in the Property’s value.
On November 18, 2024, Schmidt filed an anti-SLAPP motion seeking to
strike the complaint. Schmidt argued that both of Martin’s causes of action
arose from Schmidt’s litigation activity in the probate proceedings. Schmidt
argued her conduct in those proceedings was protected by both the anti-
SLAPP statute as well as the Civil Code section 47, subdivision (b)(2)
litigation privilege. Schmidt sought attorney fees and costs for bringing the
5
motion as authorized under Code of Civil Procedure,5 section 425.16,
subdivision (c).
Schmidt’s supporting evidence included several letters from counsel
regarding the Trust litigation. Those letters demonstrate that as early as
May 2021, the parties disputed various matters such as the subtrusts’
responsibility for the Property’s maintenance costs and the proper
distribution of the personal property located within the Property. On
September 17, 2021, Martin’s lawyer threatened to file a petition for partition
regarding the Property if an agreement to its sale could not be reached,
disputing any responsibility for the Property’s expenses. On September 20,
2021, Schmidt’s counsel objected to partition, asserting that Martin’s claim of
title to the Property is premised on premature deeds, the validity of which
was pending before the probate court.6 Counsel for Donnelly weighed in on
September 30, 2021, stating that Schmidt, Martin, and Adams-Harris have
each taken personal property from the Property, and that partition is
premature based on the chain of title.7
Martin opposed the anti-SLAPP motion. Her supporting evidence
included a declaration from Donnelly’s attorney, Gary D. Jander, indicating
that in March 2022, Schmidt expressed an interest in buying the Family
5 All further undesignated statutory references are to the Code of Civil
Procedure.
6 As described, ante, Martin and her sister quitclaimed that interest back
to the Family trust in March 2022.
7 Schmidt’s supporting evidence also included declarations from herself,
her grandson Andrew Schmidt, and her son Eric Schmidt. Those declarations
indicate that Schmidt’s grandson is married to Briley Schmidt, has never
been married to anyone named Karen, and did not purchase the Property.
6
Trust’s interest in the Property.8 Receiving no response, on April 29, 2022,
Jander informed Schmidt’s counsel that he would file a partition action.
Jander further declared that between July 14, 2022, and August 10, 2022, he
and counsel for Schmidt negotiated a continuance of the hearing on the
Partition Petition in exchange for Schmidt signing a listing agreement. The
parties stipulated to the continuance, but Jander rejected Schmidt’s proposed
real estate agent and Schmidt did not sign the listing agreement.
In response, Jander’s declaration continues, Donnelly sought an order
from the probate court directing the sale by her chosen agent. The court
ordered that the Property be sold but continued the matter “[b]ased on
[Schmidt’s counsel’s] argument” that Schmidt had a superior agent. The
probate court then selected Martin’s agent at a hearing on September 27,
2022. Jander’s declaration further states that Schmidt delayed signing the
listing agreement until October 2022 “by making allegations to the court
about the inadequacy of the proposed listing agent.”
Martin also provided declarations from herself and her attorney, Gian
N. Ducic-Montoya. Those declarations state that around March 2022,
Schmidt repeatedly represented her intent to buy the Family Trust’s interest
in the Property, and Donnelly relied on those representations and delayed
selling the Property. The declarations further state that even after court
intervention, Schmidt “continued to obstruct the sale by refusing to sign
8 Schmidt argues that Jander’s declaration is inadmissible because it
was initially filed in the Trust litigation and is therefore hearsay. We
disagree. (Sanchez v. Bezos (2022) 80 Cal.App.5th 750, 769–770 [“out-of-court
statements made under oath or penalty of perjury, such as in an affidavit,
declaration, or transcript of prior court testimony taken under oath, may be
considered for anti-SLAPP purposes, despite being hearsay.”].)
7
listing agreements, failing to respond to purchase offers, and taking other
actions designed to delay the process—including failing to comply with Court
Orders.” According to Martin and Ducic-Montoya, Schmidt falsely
represented that she was acting in good faith during this time.9
When ruling on the motion, the trial court characterized the gravamen
of both of Martin’s causes of action as breach of fiduciary duty based on the
parties’ co-ownership of the Property. Although the court found that “both
causes of action probably arise out of protected activity by Schmidt sufficient
to satisfy Schmidt's Prong 1 burden,” it declined to reach the merits of prong
one because it denied the motion under prong two of the anti-SLAPP
analysis. The trial court found that Martin established a probability of
prevailing on her claims; namely, that Schmidt engaged in a campaign of
delay, allowing Schmidt’s relative to purchase the Property below fair market
value. Schmidt’s timely appeal followed.
9 In the trial court, Schmidt objected to various portions of Martin and
Ducic-Montoya’s declarations. The trial court did not rule on those
objections, and Schmidt renews them on appeal. We presume the trial court
overruled Schmidt’s objections. (Reid v. Google, Inc. (2010) 50 Cal.4th
512, 534.) We see no error regarding the portions of the declarations
described above. We do not reach the remainder of Schmidt’s objections
because they involve matters irrelevant to our resolution of this appeal.
8
III. DISCUSSION
A. Standard of Review
“Litigation of an anti-SLAPP motion involves a two-step process. 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.’ [Citation.] Second, for each claim that does arise from
protected activity, the plaintiff must show the claim has ‘at least “minimal
merit.” ’ [Citaiton.] If the plaintiff cannot make this showing, the court will
strike the claim.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th
995, 1009.)
“We review a trial court’s ruling on a special motion to strike pursuant
to section 425.16 under the de novo standard.” (Geragos v. Abelyan (2023)
88 Cal.App.5th 1005, 1020.) “We consider ‘the pleadings, and supporting and
opposing affidavits stating the facts upon which the liability or defense is
based.’ ” (Ibid.)
B. Prong One
Schmidt argues that she easily met her burden on prong one because
Martin’s complaint is based on Schmidt’s protected litigation activity in the
Trust case. Martin disagrees, claiming that her complaint is based on
Schmidt’s noncommunicative conduct that caused independent economic
harm. We agree with Schmidt.
1. Protected Activities
“The defendant’s burden is to identify what acts each challenged claim
rests on and to show how those acts are protected under a statutorily defined
category of protected activity.” (Bonni v. St. Joseph Health System, supra,
11 Cal.5th at p. 1009.) The anti-SLAPP statute categories of protected
9
activity include “(1) any written or oral statement or writing made before
a . . . judicial proceeding . . . [and] (2) any written or oral statement or writing
made in connection with an issue under consideration or review by a . . .
judicial body.” (§ 425.16, subd. (e)(1)–(2).)
“[C]ourts have adopted ‘a fairly expansive view of what constitutes
litigation-related activities within the scope of section 425.16.’ ” (Optional
Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th
95, 113.) That includes “ ‘the filing, funding, and prosecution of a civil
action.’ ” (Finton Construction, Inc. v. Bidna & Keys, APLC (2015)
238 Cal.App.4th 200, 210.) Additionally, “[c]ommunications in the course of
settlement negotiations are protected activity within the scope of section
425.16[, . . .] even against allegations of fraudulent promises made during the
settlement process.” (Suarez v. Trigg Laboratories, Inc. (2016) 3 Cal.App.5th
118, 123.) Finally, “[t]here is no question that communications sent in
anticipation of litigation or as part of ongoing litigation constitute legitimate
speech or petitioning activity protected under the anti-SLAPP statute.”
(Geragos v. Abelyan, supra, 88 Cal.App.5th at p. 1023.)
2. Analysis
Regardless of how we classify the first cause of action for “intentional
tort,” the acts upon which it is based are Schmidt’s alleged
misrepresentations regarding her intent to purchase the Property starting in
March 2022, and her subsequent misrepresentations about cooperating with
the sale after Donnelly filed the Partition Petition. Comparing those
allegations to the parties’ history, Martin’s counsel had already threatened a
partition action regarding the Property as early as September 17, 2021, to
which both Schmidt and Donnelly’s attorneys objected to later that month.
Then, on April 29, 2022, Donnelly’s counsel told Schmidt’s attorney that
10
Donnelly would be filing a partition action. Donnelly filed the Partition
Petition on June 7, 2022, which sought to force the sale of the Property
because its joint owners could not agree on its disposition.
Accordingly, Schmidt’s statements regarding cooperating with the sale
were made while the Partition Petition was pending in the probate court, and
her initial statements of intent to purchase the Property were in anticipation
of that litigation. Further, the issue in the Partition Petition was whether
the probate court should force the sale of real property jointly owned by
parties who could not agree on its disposition. Schmidt’s alleged
misrepresentations regarding her intent to purchase the Property and her
willingness to cooperate with the sale, were in connection with that issue or
the settlement of that dispute. Consequently, Martin’s first cause of action
arises from protected activity. (§ 425.16, subd. (e)(2).)
Martin’s attempt to classify Schmidt’s acts as noncommunicative and
therefore outside of the scope of the anti-SLAPP statute is unpersuasive.
Martin argues that Schmidt “refused to sign necessary listing agreements,
ignored incoming purchase offers, and otherwise declined to perform
ministerial acts necessary to effectuate the court-ordered sale.” Martin does
not provide proper record citations to support these assertions.10 (Lee v.
Department of Parks & Recreation (2019) 38 Cal.App.5th 206, 213 [“We may
disregard any factual contention not supported by a proper citation to the
record.”].) In any event, the allegations of Martin’s complaint and her
supporting evidence refute her claims.
10 The argument portion of Martin’s brief contains no record citations
regarding Schmidt’s acts. In her factual and procedural background
descriptions, Martin cites exhibits and page numbers that do not correspond
with the Appellant’s Appendix.
11
Jander’s declaration shows that Schmidt’s refusal to sign a listing
agreement arose out of negotiations between Schmidt’s counsel and
Donnelly’s counsel regarding continuance of a Partition Petition hearing and
the parties’ dispute over the proper real estate agent to sell the disputed
property. Jander’s declaration further demonstrates that the probate court
continued a September 2022 hearing “based on [counsel for Schmidt’s]
argument” that she had a superior agent, and after Martin obtained a court
ruling in her favor on that issue, Schmidt delayed the sale “by making
allegations to the court about the inadequacy of the proposed listing agent.”
The complaint’s allegations and Martin and Ducic-Montoya’s
declarations confirm that the allegedly obstructive acts cited by Martin
occurred in connection with the then-pending Partition Petition. Indeed,
by “declin[ing] to perform ministerial acts necessary to effectuate the court-
ordered sale,” Schmidt was merely asserting her position as the respondent
in the Partition Petition and opposing the very acts that petition sought to
compel.
Under these circumstances, the alleged delay causing acts were
Schmidt’s statements made before the court in the Partition Petition and
Schmidt’s assertions of her position in that litigation. These acts are
protected under the anti-SLAPP statute. (§ 425.16, subd. (e)(1) & (2); see
also, Manlin v. Milner (2022) 82 Cal.App.5th 1004, 1021 [first prong met
where “the alleged injury-producing conduct” was “failure to conduct
litigation in a certain way”].)
Finally, Martin claims her complaint was based on Schmidt’s
obstruction of physical access to the Property. Again, Martin fails to provide
any record citations to support this. Further, our review of the record shows
that Martin’s complaint contains no allegations of physical obstruction, and
12
Martin did not assert that claim when opposing the motion in the trial court.
(Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 883
[“Because the issues to be determined in an anti-SLAPP motion are framed
by the pleadings, we will not ‘insert into a pleading claims for relief based on
allegations of activities that plaintiffs simply have not identified.’ ”];
Greenwich S.F. v. Wong (2010) 190 Cal.App.4th 739, 767 [a party who fails to
raise a claim in the trial court waives such claim on appeal].) Nonetheless,
the only references to obstruction in Martin’s supporting evidence relate to
the prior dispute regarding Trust personal property, and that act is not
linked to any delays in the Property’s sale. (See, Martin’s declaration
[“following Robert’s death [on January 10, 2021, . . .] Linda inappropriately
maintained control over the [. . .] Property (despite the Family Trust being
the recipient of the personal property contained therein)”]; Jander’s
Declaration [“Schmidt was obstructing access to the [P]roperty so that the
personal property in the house that belonged to the beneficiaries of the trust
could be removed.”].)
Turning to the second cause of action for fraud, it is necessarily
premised on communication. (See, e.g., City of Industry v. City of Fillmore
(2011) 198 Cal.App.4th 191, 211 [the elements of fraud are “(1) a
misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance;
(4) justifiable reliance; and (5) resulting damage”].) It is also based on the
same alleged misrepresentations discussed above, except during the
narrower window of July and November of 2022, during which the Partition
Petition was pending. Those misrepresentations were either made in the
probate court or in connection with the probate court’s consideration of the
forced sale of the Property. Consequently, the fraud cause of action arises
from protected activity. (§ 425.16, subd. (e)(1) & (2).)
13
Based on the foregoing, Schmidt has carried her burden in showing
that both causes of action arise from Schmidt’s protected petition rights. The
burden therefore shifts to Martin to prove a probability of prevailing on her
claims.
C. Prong Two
Schmidt argues that Martin failed to carry her burden in proving a
probability of prevailing on her complaint because her claims are entirely
barred by the litigation privilege. Asserting the same arguments as she did
under prong one, Martin argues the litigation privilege does not apply
because her claims are based on Schmidt’s noncommunicative conduct.
Again, we agree with Schmidt.
1. Likelihood of Success and the Litigation Privilege
At this step, the court’s “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.” (Crossroads Investors, L.P. v.
Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 777.)
The litigation privilege, found in Civil Code section 47,
subdivision (b)(2), is “ ‘relevant to the second step in the anti-SLAPP analysis
in that it may present a substantive defense a plaintiff must overcome to
demonstrate a probability of prevailing.’ ” (Trinity Risk Management, LLC v.
Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1006.)
“ ‘The privilege “immunizes defendants from virtually any tort liability
(including claims for fraud), with the sole exception of causes of action for
malicious prosecution.” ’ ” (Crossroads Investors, L.P. v. Federal National
Mortgage Assn., supra, 13 Cal.App.5th at p. 786.)
14
The litigation privilege covers “ ‘ “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.” ’ ” (Crossroads
Investors, L.P. v. Federal National Mortgage Assn., supra, 13 Cal.App.5th at
pp. 785–786.) “The litigation privilege has been applied in ‘numerous cases’
involving ‘fraudulent communication or perjured testimony.’ ” (Flatley v.
Mauro (2006) 39 Cal.4th 299, 322.) It extends to communications outside the
courtroom, as well as those before or after the underlying proceedings.
(Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.) “[U]nless it is
demonstrated that an independent, noncommunicative, wrongful act was the
gravamen of the action, the litigation privilege applies.” (Id. at p. 1065.)
2. Analysis
As discussed above, the injury producing acts in both causes of action in
Martin’s complaint are Schmidt’s alleged misrepresentations regarding
purchasing the Property and cooperating with its sale, and Schmidt’s
opposition to the Partition Petition by asserting her position regarding the
proper real estate agent, requesting continuances, and arguing in the probate
court. These are communicative acts connected to the Partition Petition that
fall within the litigation privilege. Martin is therefore unable to carry her
burden on prong two, and the trial court should have denied the motion.
15
IV. DISPOSITION
The order is reversed. On remand, the trial court shall enter an order
striking Martin’s complaint and shall address Schmidt’s request for attorney
fees under section 425.16, subdivision (c). Schmidt is awarded costs on
appeal.
RUBIN, J.
WE CONCUR:
DO, Acting P. J.
KELETY, J.
16