Filed 4/28/16 Schultz v. Schultz CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

MARTA SCHULTZ,

Plaintiff and Respondent,

v.

ERIK SCHULTZ et al.,

Defendants and Appellants.

 B263243

 (Los Angeles County

 Super. Ct. No. BC496841)

APPEAL from an order of the Superior Court of Los Angeles County, Mel Red 

Recana, Judge. Affirmed in part and reversed in part.

Carlsen Law Corporation and Miles Carlsen for Defendants and Appellants.

Southern California Law Group and Ross K. Reghabi and Ross Hoonanian for 

Plaintiff and Respondent.

——————————
2

Erik Shultz appeals from the trial court’s denial of his motion under Code of Civil 

Procedure section 425.161to strike portions of the first amended cross-complaint of 

Marta Schultz. We affirm in part and reverse in part.

BACKGROUND

Erik and Marta Schultz are the adult children of Juanita Schultz.

2

 On December 5, 

2012, when Juanita was 81, Eric filed a complaint against Marta for defamation and 

intentional infliction of emotional distress. Eric alleged that Marta made false statements

about him to Juanita, including that Erik was stealing Juanita’s money, trying to give 

away or injure Juanita’s dogs, planning to kidnap Juanita from her home in Arizona, and 

that Erik had cut Marta out of Juanita’s will. On April 22, 2014, Marta filed a first 

amended cross-complaint against Erik, also for defamation and intentional infliction of 

emotional distress. Marta alleged that Erik made false statements about her in a 

December 10, 2012 email (the email) Erik sent to his attorney and to Juanita’s attorney, 

including that Marta was an elder abuser, was stealing money from Juanita, and was 

using “mentally abusive practices” to influence Juanita against Erik. The cross-complaint 

attached the email as an exhibit.

Erik filed a motion to strike paragraphs 12 and 13 of Marta’s cross-complaint

under section 425.16 on June 20, 2014. Erik asserted that the allegations in these 

paragraphs arose out of his statements in the email, which were absolutely privileged 

activity as statements to an attorney in the context of litigation. Paragraph 12 states: 

“During the period when Juanita exhibited dementia/Alzheimer’s symptoms, Erik falsely 

represented to Rudy S[tad]elman (Juanita’s personal attorney) and/or third parties that 

[Marta] is committing elder abuse and attempting to steal money from her mother.” 

Paragraph 13 states: “The fact remains that Marta was trying to protect the interest of her 

ailing mother, while Erik falsely represented, reissued, and reinforced to Juanita that 

 

1 All further statutory references are to the Code of Civil Procedure unless 

otherwise indicated.

2 We use the Schultzes’ first names for clarity, intending no disrespect.
3

Marta was using witchcraft against Juanita. Furthermore, Erik represented to Juanita that 

Marta was attempting to kidnap her, however this statement was far from the truth.” 

Marta filed an opposition and Erik replied.

On February 9, 2015, the trial court denied the special motion to strike, concluding 

that Paragraph 12 described protected statements, but Erik had not shown a probability of 

prevailing, as his communications in the email were made with malice. Paragraph 13 did 

not describe protected activity. Erik filed this timely appeal.

DISCUSSION

Section 425.16, known as the anti-SLAPP statute, authorizes the early dismissal of 

SLAPP actions, and “‘SLAPP’ is an acronym for ‘strategic lawsuit against public 

participation.’” (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 

1244, fn. 1.) Subdivision (b)(1) of the statute provides: “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.” The statute allows for the summary disposition of 

meritless lawsuits intended “‘to chill or punish a party’s exercise of constitutional rights 

to free speech and to petition the government for redress of grievances.’” (Paiva v. 

Nichols (2008) 168 Cal.App.4th 1007, 1015.)

“When ruling on an anti-SLAPP motion, the trial court employs a two-step 

process. It first looks to see whether the moving party has made a prima facie showing 

that the challenged causes of action arise from protected activity. [Citation.] If the 

moving party meets this threshold requirement, the burden then shifts to the other party to 

demonstrate a probability of prevailing on its claims. [Citations.] In making these 

determinations, the trial court considers ‘the pleadings, and supporting and opposing 

affidavits stating the facts upon which the liability or defense is based.’ (§ 425.16, 

subd. (b)(2).) Our review is de novo.” (Drell v. Cohen (2014) 232 Cal.App.4th 24, 29.) 

If Erik, the party moving to strike, does not make “a prima facie showing that one or 
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more causes of action arise from an act in furtherance of the constitutional right of 

petition or free speech in connection with a public issue,” the motion must be denied. 

(Ibid.) “[S]tatements, writings and pleadings in connection with civil litigation are 

covered by the anti-SLAPP statute, and that statute does not require any showing that the 

litigated matter concerns a matter of public interest.” (Rohde v. Wolf (2007) 154 

Cal.App.4th 28, 35.) Section 425.16 “‘protect[s] the right of litigants to “‘the utmost 

freedom of access to the courts without [the] fear of being harassed subsequently by 

derivative tort actions.’”’” (Ibid.)

Paragraph 13’s allegations that Erik falsely told Juanita that Marta was using 

witchcraft and was attempting to kidnap Juanita describe statements that do not appear in 

Erik’s email to his and Juanita’s lawyers. These purportedly false statements, made by 

Erik to his mother Juanita, were not in connection with the litigation and therefore 

paragraph 13 does not describe protected activity.

In contrast, paragraph 12 of Marta’s cross-complaint is based on protected 

statements (that Marta committed elder abuse and stole from Juanita) which Eric made in 

connection with ongoing litigation. Erik’s email to his and Juanita’s lawyers, dated five 

days after he filed his initial complaint, stated that Marta “has employed mentally abusive 

practices to poison my mother’s mind” and had falsely told Juanita “that I am stealing or 

trying to steal her money.” The email constitutes statements made in connection with the 

ongoing litigation and is protected activity under section 425.16.3

The burden then shifted to Marta to demonstrate a probability of prevailing on her 

claims in paragraph 12 that when Eric told the attorneys that she was abusing Juanita and 

 

3 Marta’s respondent’s brief argues that the challenged portions of her crosscomplaint do not qualify as statements made to an attorney in anticipation of litigation. 

This is irrelevant, as the statements were made during ongoing litigation. Further, the 

respondent’s brief is not paginated and does not contain a single citation to the record, in 

blatant violation of rule 8.204(b)(7) and rule 8.204(a)(1)(C) of the California Rules of 

Court. Instead of striking the brief, however, we have chosen to disregard its defects and 

consider Marta’s arguments. (Nazari v. Ayrapetyan (2009) 171 Cal.App.4th 690, 694, 

fn. 1.)
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trying to steal her money, Eric defamed Marta and intentionally inflicted emotional 

distress. Civil Code section 47, subdivision (b) describes the litigation privilege, which 

applies to communications made in judicial proceedings by litigants to achieve the 

objects of the litigation, and with some logical relation to the action. (Rohde v. Wolf, 

supra, 154 Cal.App.4th at p. 37.) Like section 425.16, the litigation privilege protects the 

litigant’s right to access to the courts without fearing harassment by derivative tort 

actions. (Ibid.) Further, the litigation privilege under Civil Code section 47, 

subdivision (b) “‘is absolute in nature, applying “to all publications, irrespective of their 

maliciousness,”’” and “‘may present a substantive defense plaintiff must overcome to 

demonstrate a possibility of prevailing.’” (Kenne v. Stennis (2014) 230 Cal.App.4th 953, 

964, 963.) Erik’s statements in the email to the attorneys are absolutely privileged, which 

provides an impervious substantive defense to Marta’s causes of action for defamation 

and intentional infliction of emotional distress. Marta failed to meet her burden to make 

a prima facie showing of a probability of prevailing in her action on the allegations in 

paragraph 12. The trial court erred in denying Erik’s anti-SLAPP motion as to 

paragraph 12.

Erik argues that his anti-SLAPP motion challenged additional paragraphs in the 

complaint. His June 20, 2014 notice of motion referenced only paragraphs 12 and 13. 

Erik includes in his appellant’s appendix a revised notice of motion dated August 13, 

2014 (not bearing a file stamp). The revised notice stated that his initial notice was 

incorrect, and he also intended to request (as is reflected in the body of the motion) that 

the trial court strike paragraphs 10, 15, and 24 to 32. The court’s order addresses only 

paragraphs 12 and 13. As the record Erik provided does not show that the trial court had 

the opportunity to consider whether to strike additional paragraphs from the complaint, 

we decline to decide the issue on appeal. Nevertheless, the rationale expressed in this 

opinion applies to the additional paragraphs.
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DISPOSITION

The trial court is ordered to strike paragraph 12 from the first amended crosscomplaint. In all other respects, the order is affirmed. Erik and Sue Schultz shall recover 

their costs on appeal.

NOT TO BE PUBLISHED.

JOHNSON, J.

We concur:

ROTHSCHILD, P. J.

LUI, J.