Family Law Tentative Rulings - Courtroom 23

The following tentative rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument as to any motion, it will be necessary for you to contact the department’s Judicial Assistant by telephone at (707) 521-6604 by 4:00 p.m. on the day before the hearing. Any party requesting an appearance must notify all other opposing parties of their intent to appear.

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1. 24FL02521, Shantz/Shantz Disso

This matter was continued from October 3, 2025, for oral argument regarding a Motion to Compel Further Discovery Responses.  A tentative ruling was previously posted.  Parties are to appear for oral argument.

2. SFL079282, Miller/Miller Disso

A Statement of Decision was entered by Judge Lozada in this matter on September 22, 2025. 

Thereafter, Judge Lozada went out on an extended medical leave with an unknown return date.  On October 9, 2025, Respondent filed Objections to the Statement of Decision.  The matter was specially set to be heard before Judge Averill as the Supervising Judge of the Family Law Division on November 19, 2025.  Both parties were given an opportunity to further brief the Court’s authority to enter the Statement of Decision as the Final Decision given Judge Lozada’s unavailability.   

Respondent/Wife asserts seven objections to the proposed statement of decision. The decision itself was issued with Judge Lozada’s signature and extended factual findings.   

“When a statement of decision does not resolve a controverted issue, or if the statement is ambiguous and the record shows that the omission or ambiguity was brought to the attention of the trial court either prior to entry of judgment or in conjunction with a motion under Section 657 or 663, it shall not be inferred on appeal or upon a motion under Section 657 or 663 that the trial court decided in favor of the prevailing party as to those facts or on that issue.” CCP, § 634. “The main purpose of an objection to a proposed statement of decision is not to reargue the merits, but to bring to the court's attention inconsistencies between the court's ruling and the document that is supposed to embody and explain that ruling.” Heaps v. Heaps (2004) 124 Cal.App.4th 286, 292. Where the objections “are in the form of excerpts from the proposed statement of decision in bold, followed by text attacking the excerpt, usually as contrary to the evidence”, they go to the merits and not those matters properly addressed by CCP § 634. Id. at 292, fn. 3.

“In all cases where the decision of the court has been entered in its minutes, and when the judge who heard or tried the case is unavailable, the formal judgment or order conforming to the minutes may be signed by the presiding judge of the court or by a judge designated by the presiding judge.” CCP, § 635.

Where the trial court judge does not prepare a statement of decision or sign it, the presiding judge has no power to step into the trial judge’s position and finalize an order. Swift v. Daniels (1980) 103 Cal.App.3d 263, 265; Armstrong v. Picquelle (1984) 157 Cal.App.3d 122, 128. In this case, the trial court judge prepared and signed a statement of decision before becoming unavailable. 

In Leiserson v. City of San Diego (1986) 184 Cal.App.3d 41, the Court of Appeal affirmed the judgment after the presiding judge finalized the trial judge’s decision after the trial judge died after a statement of decision was issued, but before he could rule on the objections of the parties to the statement of decision. Id. at 48. The trial judge issued a signed statement of decision he labeled his “Intended Decision”. Id. at 46.  Plaintiff tendered various objections to the “Intended Decision”. Id. at 47. The judge began the hearing on the objections, but died before those hearings could be concluded at the second calendar date. Ibid.  The Court is not persuaded that the objections must be heard in order for Leiserson to be applicable.

The relevant considerations as stated by both the Court in Leiserson and the Raville is that the decision provides “the factual and legal basis for its decision as to each of the principal controverted issues”. See CCP § 632. The statement must be signed. See Armstrong v. Picquelle (1984) 157 Cal.App.3d 122, 128.

Respondent’s Objection One raises the only issue that this Court finds requires retrial.  The Statement of Decision issued by Judge Lozada retroactively modified the effective payment date to March 1, 2024, and left it to the parties to calculate the amount. As Respondent notes, there is relevance to the amount of overpayment credit to be applied when ordering effective dates, and the decision lacks this factual issue. 

As to Objection Seven, Respondent raises that the “change of circumstances” cited by the Court was the sale of the house, which did not occur until four months after the motion was filed. However, the Statement of Decision states in the alternative that “the evidence shows the parties’ incomes have increased substantially enough since their support agreement to amount to a sufficient ‘Change in Circumstances’ to reanalyze long-term spousal support.” Statement of Decision, pg. 4:8-10. The other objections are almost entirely targeted to the merits, and not articulated as “inconsistencies” but rather rearguing the merits. Heaps v. Heaps (2004) 124 Cal.App.4th 286, 292. These are not issues to be resolved under CCP § 634.

For these reasons the Court Adopts the Statement of Decision as to all findings previously made at trial as set in the proposed Statement of Decision issued on September 22, 2025.  The Court shall address the calculation of overpayment, if any, from the date of the modification of the order until the present time and determine any specific orders for repayment.

3.         SFL950997, Stumbaugh Disso

A Statement of Decision was entered by Judge Lozada in this matter on November 5, 2025, which occurred after the date he went out on an extended medical leave with an unknown return date.  Both parties filed Objections to the proposed Statement of Decision.  The matter was specially set to be heard before Judge Averill as the Supervising Judge of the Family Law Division on November 19, 2025.  Both parties were given an opportunity to further brief the Court’s authority to enter the Statement of Decision as the Final Decision given Judge Lozada’s unavailability.   

“When a statement of decision does not resolve a controverted issue, or if the statement is ambiguous and the record shows that the omission or ambiguity was brought to the attention of the trial court either prior to entry of judgment or in conjunction with a motion under Section 657 or 663, it shall not be inferred on appeal or upon a motion under Section 657 or 663 that the trial court decided in favor of the prevailing party as to those facts or on that issue.” CCP, § 634. “The main purpose of an objection to a proposed statement of decision is not to reargue the merits, but to bring to the court's attention inconsistencies between the court's ruling and the document that is supposed to embody and explain that ruling.” Heaps v. Heaps (2004) 124 Cal.App.4th 286, 292. Where the objections “are in the form of excerpts from the proposed statement of decision in bold, followed by text attacking the excerpt, usually as contrary to the evidence”, they go to the merits and not those matters properly addressed by CCP § 634. Id. at 292, fn. 3.

“In all cases where the decision of the court has been entered in its minutes, and when the judge who heard or tried the case is unavailable, the formal judgment or order conforming to the minutes may be signed by the presiding judge of the court or by a judge designated by the presiding judge.” CCP, § 635.

Where the trial court judge does not prepare a statement of decision or sign it, the presiding judge has no power to step into the trial judge’s position and finalize an order. Swift v. Daniels (1980) 103 Cal.App.3d 263, 265; Armstrong v. Picquelle (1984) 157 Cal.App.3d 122, 128. In this case, the trial court judge prepared and signed a statement of decision before becoming unavailable. 

In Leiserson v. City of San Diego (1986) 184 Cal.App.3d 41, the Court of Appeal affirmed the judgment after the presiding judge finalized the trial judge’s decision after the trial judge died after a statement of decision was issued, but before he could rule on the objections of the parties to the statement of decision. Id. at 48. The trial judge issued a signed statement of decision he labeled his “Intended Decision”. Id. at 46.  Plaintiff tendered various objections to the “Intended Decision”. Id. at 47. The judge began the hearing on the objections, but died before those hearings could be concluded at the second calendar date. Ibid.  The Court is not persuaded that the objections must be heard in order for Leiserson to be applicable.

The relevant considerations as stated by both the Court in Leiserson and the Raville is that the decision provides “the factual and legal basis for its decision as to each of the principal controverted issues”. See CCP § 632. The statement must be signed. See Armstrong v. Picquelle (1984) 157 Cal.App.3d 122, 128.

Petitioner/Wife’s objection related to a credibility finding and is not the proper subject of an objection under CCP §634. 

Respondent/Husband filed multiple objections.   The only issue that this Court finds is proper pursuant to CCP §634 relates to the commencement date of the modification of spousal support.  The proposed Statement of Decision very clearly states that the effective date is 12/1/25.  It also clearly states that the request for a Richmond Order is denied.  However, the closing sentence of the proposed statement of decision contains conflicting language regarding any potential calculation of overpayment and offset which causes ambiguity.

For these reasons the Court Adopts the Statement of Decision as to all findings previously made at trial as set in the proposed Statement of Decision issued on November 19, 2025, with exception of the commencement date of the order.  Given the ambiguity created by the closing language of the proposed Statement of Decision, the issue of the commencement date of the modification of spousal support only shall be retried.

4 - 5.    25FL02091, Raich v. Raich

Petitioner Angel Galvin Raich (“Petitioner”) filed the petition for domestic violence restraining order (the “Petition”) in this action against respondent Robert Raich (“Respondent”).

This matter is on calendar for Respondent’s Anti-SLAPP motion under CCP § 425.16.

The Anti-SLAPP motion is GRANTED.

1. The Complaint as Related to the Motion

The Petition alleges that the parties were married from 2002 to 2007. Petition, Petitioner’s Declaration ¶ 2, 8. During the marriage, Petitioner alleges that Respondent sexually abused her teenage son. Petition ¶ 5. Petitioner learned of the abuse from one of her son’s friends in spring of 2005, but the parties did not separate until September 15, 2005. Petition ¶ 6-7. Petitioner filed for dissolution on June 28, 2006. Petition ¶ 8. The court in that case issued a protective order barring Respondent from going to Petitioner’s home “unless there is a duly noticed corporate meeting there” and ordering that all communication by Respondent to Petitioner be in writing. Petition ¶ 9. On September 18, 2007, the parties entered into a martial settlement agreement (the “MSA”), which divided their assets and included a non-disparagement clause. Petition ¶ 11. The MSA’s terms were also included in the parties’ dissolution judgment on October 26, 2007. Ibid.

There are no allegations of contact between the parties from their dissolution judgment until 2018, when a series of court cases was filed by Respondent. Petition ¶ 13-16. Petitioner avers that Respondent uses the non-disparagement clause as a method of control. Petition ¶ 19. On September 19, 2025, Petitioner was served personally at her home with a deposition subpoena for a case in which Respondent is the defendant, Doe v. Doe. Petition, ¶ 20-22. Petitioner avers that the service of the subpoena made her feel “harassed and traumatized all over again”. Petition ¶ 24.

2. Evidentiary and Procedural Issues

Judicial notice of official acts and court records is statutorily appropriate. See Cal. Evid. Code § 452(c) and (d) (judicial notice of official acts). The court must take judicial notice of any matter requested by a party, so long as it complies with the requirements under CCP § 452. CCP § 453. However, the court may, on its own motion, take judicial notice of any matter under CCP § 452. Yet since judicial notice is a substitute for proof, it “is always confined to those matters which are relevant to the issue at hand.” Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301. Factual findings found within a prior judicial opinion are not an appropriate subject of judicial notice. Kilroy v. State (2004) 119 Cal.App.4th 140, 148. Courts may take notice of public records, but not take notice of the truth of their contents. Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375. The scope of the judicial notice taken is limited to the action of the executive agency. Id at 1375. Additional information which is included in the documentation or contentions as to the truth of the contents is not appropriate for judicial notice. Id. When a party files a request for judicial notice, they must furnish sufficient information that the court may take judicial notice. CCP § 453(b). Failure to provide copies of ordinances of which judicial notice is sought is sufficient basis for the court to deny judicial notice for failure to furnish required information. Salinero v. Pon (1981) 124 Cal.App.3d 120, 133.

Petitioner asks for judicial notice of cases from other counties. See Petition ¶ 14, 16.  Petitioner provides nothing except her summary of what occurred in those cases. This is not sufficient information for the Court to properly take judicial notice of what can only be assumed to be the entire docket of those cases. As to Petitioner’s requests for judicial notice contained in the Petition, that request is DENIED.

Petitioner filed an ex parte application after this motion was previously continued on December 5, 2025, seeking to file two declarations under seal. The Court’s continuance order specifically stated that the parties were not entitled to any additional briefing, as the matter had been fully briefed before that hearing. At the time of review, the declarations ordered sealed have not been filed, and the content of those declarations are not considered in evaluating this motion due to their filing after the filing deadlines. This is not a determination of their admissibility if matters proceed to the merits.

3. Governing Authorities

1. Anti-SLAPP Generally

CCP § 425.16(b)(1) provides that 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. CCP § 425.16(e)(1) defines the foregoing phrase to include “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.” “In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” CCP § 425.16(b)(2).

A defendant has the initial burden to make a prima facie showing that the complaint “arises from” their exercise of free speech or petition rights. Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61; Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449 at 458-59. “At the first step of the analysis, the defendant must make two related showings. Comparing its statements and conduct against the statute, it must demonstrate activity qualifying for protection. (See § 425.16, subd. (e).) And comparing that protected activity against the complaint, it must also demonstrate that the activity supplies one or more elements of a plaintiff's claims.” Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887. No finding of intent to chill free speech, or actual chilling of free speech, is required. Equilon, 29 Cal.4th 58-59. If they meet that initial burden, the burden shifts to the plaintiff to establish a “probability” that he will prevail on the claims which are based on protected activity. CCP § 425.16(b).

Where the conduct alleged in a Domestic Violence Protection Act (“DVPA”) petition arises from protected activity, Anti-SLAPP protections apply. Bassi v. Bassi (2024) 101 Cal.App.5th 1080, 1093.

2. Determination of Protected Activity

Subdivision (e) sets forth the different types of activity which fall within the ambit of section 425.16.  It states, in full,

As used in this section, “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (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, or (4) 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.

“If the acts alleged in support of the plaintiff's claim are of the sort protected by the anti-SLAPP statute, then anti-SLAPP protections apply.” Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887. The alleged wrongful conduct must itself have been protected activity, and the anti-SLAPP statute does not apply merely because the allegations refer to or in some manner tangentially touch on events that include protected activity.   Old Republic Construction v. The Boccardo Law Firm (2014) 230 Cal.App.4^th 859, 867-868. “Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” Baral v. Schnitt (2016) 1 Cal.5th 376, 394. In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” CCP, § 425.16 (b)(2). The supporting affidavits, and even the arguments made in opposition may be considered by the court when determining whether the allegations constitute protected activity. Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1017, fn. 5.

Issuance of subpoenas in connection with an “official proceeding” is protected activity under the Anti-SLAPP statute. Mallard v. Progressive Choice Ins. Co. (2010) 188 Cal.App.4th 531, 543. Similarly, investigation in connection with dissolution actions is protected activity as contemplated by the Anti-SLAPP statute. Timothy W. v. Julie W. (2022) 85 Cal.App.5th 648, 659.

"Some cases have suggested that ambiguous pleading can in some instances make a suit not a SLAPP. (Citation). . . The statute instructs us to take account of [] additional allegations [presented in the evidence] in our analysis. (See § 425.16, subd. (b)(2) [courts ruling on anti-SLAPP motions “shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based”].)” Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1017, fn. 5.

3. Probability of Success on the Merits

“(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.” Navellier v. Sletten (2002) 29 Cal.4th 82, 88–89, internal quotations omitted. Conclusory allegations will not protect insufficient claims from anti-SLAPP remedies. Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1423. Plaintiff is charged with producing “competent and admissible evidence” to meet this burden. Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236. The court does not weigh credibility or comparative strength of the evidence in making this summary judgment-like determination. See, e.g. Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291. The court must “accept as true all evidence favorable to the plaintiff and assess the defendant's evidence only to determine if it defeats the plaintiff's submission as a matter of law.” Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699–700. But to demonstrate a probability of prevailing on the merits, the plaintiff must produce admissible evidence sufficient to overcome any privilege or defense that the defendant has asserted to the claim. See, e.g. Flatley v. Mauro (2006) 39 Cal.4th 299, 323 (Civil Code section 47(b) litigation privilege is a substantive defense the plaintiff must overcome to demonstrate probability of prevailing).

1. 1. The Domestic Violence Prevention Act

“The purpose of this division is to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.” Fam. Code § 6220. The time since the most recent act of abuse, alone, is not sufficient basis to deny relief under the DVPA, but instead the court must always consider the totality of the circumstances. Fam. Code § 6301 (d).

“To be facially sufficient under the DVPA, an application for a restraining order must allege abuse within the meaning of the DVPA.” In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1496. Abuse includes both physical abuse, sexual abuse, placing a person in reasonable apprehension of imminent serious bodily injury to that person or another, or any other conduct enjoined by Family Code § 6320. Fam. Code § 6203. This includes “disturbing the peace of the other party”. Fam. Code § 6320. “(T)he plain meaning of the phrase ‘disturbing the peace of the other party’ in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party.” In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497.

Where a mother witnessed repeated abuse of her child by the father, mother had pled actionable abuse under the DVPA, as the conduct pled satisfied the element of disturbing mother’s peace. Gou v. Xiao (2014) 228 Cal.App.4th 812, 818. In contrast, where a child does not witness the abuse of his father by his step-father, the child does not present a basis for showing that such co duct was “abuse” as defined by the DVPA. Riehl v. Hauck (2014) 224 Cal.App.4th 695, 701.

1. 2. Litigation Privilege

The litigation privilege of Civil Code section 47(b), bars a civil action for damages for communications made “[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to [statutes governing writs of mandate].”

Claims for restraining orders under the DVPA are subject to the litigation privilege, and therefore are immune from tort liability for all actions other than malicious prosecution. S.A. v. Maiden (2014) 229 Cal.App.4th 27, 43.

Issuance of subpoenas, even in a manner which does not comport with state law, may be subject to protection under litigation privilege if the conduct is reasonably related to the proceeding in which it is issued. Susan S. v. Israels (1997) 55 Cal.App.4th 1290, 1303-1304. Similarly, misuse of information obtained in a dissolution action is still protected activity so long as the conduct was reasonably related to the dissolution action. Silberg v. Anderson (1990) 50 Cal.3d 205, 219.

1. 3. Marsy’s Law

Victims of crimes in California are entitled to protections under the California Constitution protecting them from inquiries by the defendant. Cal. Const., art. I, § 28. However, this protection only applies to “victims”, and therefore does not apply to civil or family proceedings with the same parties. Slaieh v. Superior Court of Riverside County (2022) 77 Cal.App.5th 266, 275.

4. Attorney’s Fees

Prevailing defendant is entitled to fees under the Anti-SLAPP statute. Ketchum v. Moses (2001) 24 Cal.4th 1122, 1139. The fee award calculation generally begins with the “lodestar,” which is the number of hours reasonably expended multiplied by the reasonable hourly rate prevailing in the community for similar services by an attorney with similar skill and experience. See, e.g. PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132. The trial court may adjust the lodestar amount based on various factors specific to the case to fix the attorney fees at fair market value for the services provided, including: “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” Ketchum, 24 Cal.4th at 1132. See also Gorman v. Tassajara Dev. Corp. (2009) 178 Cal.App.4th 44, 92 (“The first step involves the lodestar figure—a calculation based on the number of hours reasonably expended multiplied by the lawyer’s hourly rate. ‘The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.’…The factors to be considered include the nature and difficulty of the litigation, the amount involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case.” (internal citations omitted).  While fees are mandatory for a prevailing defendant under the Anti-SLAPP statute, where there is an inflated fee request, the court appropriately may appropriately reduce or deny the fees. Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321; see also Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138 (“To the extent a trial court is concerned that a particular award is excessive, it has broad discretion to adjust the fee downward or deny an unreasonable fee altogether.”).

4. Analysis

In the instant case, Respondent argues that the Petition relies upon allegations of conduct which is Constitutionally protected conduct in the course of litigation. Plaintiffs argue that Defendant’s conduct is not protected, and that they can establish a prima facie case to support the Complaint.

1. Respondent Shows That the Case Arises from Protected Activity

At a glance, substantial portions of the Petition clearly rely upon conduct which is itself protected activity as defined by CCP § 425.16. Conduct which is undertaken under the ambit of litigation is subject to protection as an official proceeding, including the issuance of subpoenas. Susan S. v. Israels (1997) 55 Cal.App.4th 1290, 1303-1304; see also Silberg v. Anderson (1990) 50 Cal.3d 205, 219.

The Petitioner makes various allegations regarding Respondent’s alleged sexual abuse of Petitioner’s son, and subsequent conduct. The Petition makes no allegations of interactions between the parties other than court proceedings occurring after 2005.[1] See Petition ¶ 8-26. The parties separated in September 2005, and Petitioner references abuse occurring starting in approximately 2003.

Petitioner avers that the allegations of service of the subpoena are secondary. This is contradicted by both her other arguments in opposition, and her Petition. Petitioner pleads that the sexual abuse of her son occurred starting in 2003, and that the parties separated in September 2005, more than 20 years ago. Petitioner surely would not have come to this Court in search of relief based on a statute designed to “provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence” absent some factual allegations occurring in the preceding decade. Fam. Code § 6220. Even if these claims are not the primary basis for Petitioner’s alleged abuse, they are material. While the time since the last abuse occurred cannot form the sole basis for denial of a DVRO, it is incredibly relevant to the necessity of the remedies. As a result, the allegations of protected activity is far from tangential. Contra, Baral v. Schnitt (2016) 1 Cal.5th 376, 394. Given that the protected activity is clearly relevant to support Petitioner’s claims, it is also capable of being struck under the Anti-SLAPP statute.

Petitioner provides support for this position, as she expends substantial effort in claiming that the issuance of the subpoena is abuse as defined by Fam. Code § 6309 (c)(1). At the determination of protected activity this merely appears relevant to show that Petitioner’s claim relies substantially upon the litigation conduct as material allegations. While Petitioner contends in her opposition that the entirety of her claims rests on the sexual abuse of her son “(i)n approximately 2003” until their separation on September 15, 2005, she makes contrary arguments by opining that the service of the subpoena is itself abuse.

The allegations between the subpoena and the separation fare little better. Any of the allegations related to the actions filed by Respondent in 2018, or even the parties’ MSA, clearly fall under conduct which was intertwined with litigation, and as such is subject to “official proceeding” protections. Silberg v. Anderson (1990) 50 Cal.3d 205, 219.

The Petition relies on allegations of protected activity, and therefore the burden shifts to Petitioner.

2. Petitioner Fails to Show a Probability of Prevailing

Respondent having displayed that the Petition relies on allegations of protected activity, Petitioner in turn bears the burden of producing evidence of her probability of prevailing on the merits.

1. Sufficiency of Allegations

As an initial hurdle, where a pleading fails to state a claim, anti-SLAPP rules require striking of the pleading. Navellier v. Sletten (2002) 29 Cal.4th 82, 88–89 (complaint must be shown to be “legally sufficient”). In examining the allegations of the Petition, the Court first notes that the Petition contains various allegations of the interactions of the parties, but that all the allegations either derive from Respondent’s conduct toward Petitioner’s son, or litigation conduct.

Separate from the manner in which the service of the subpoena is intertwined with litigation issues, Petitioner argues that the service of the subpoena on her was a violation of the protective order entered on June 11, 2007. This argument appears entirely without merit based on what is presented. The protective order clearly proscribes Respondent having direct contact with Petitioner or going to her house personally. There is no language within that order which would be capable of being construed as a prohibition on Petitioner being subject to personal service by a registered process server.

Nor was service on Petitioner personally in any way improper. While Petitioner asserts that her divorce action required her to be served through counsel, she provides no relevant authority showing that such service would be appropriate in Doe v. Doe. Petitioner is not a party to the Alameda Civil action, and deposition subpoenas must be served personally to be binding. CCP § 2020.220 (c)(3). Service of the subpoena on Petitioner personally at her home by a registered process server does not appear any way improper.

The allegations in a DVPA action must meet the definition of abuse for the action to proceed to the merits. In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1496. Petitioner’s averment of abuse clearly relies on the allegation that her son was sexually abused.  While Petitioner avers that she should be entitled to various forms of declaratory relief (such as testifying about the alleged abuse of her son more than 20 years ago), she must allege sufficient facts to support her claim under the DVPA for the Court to provide any relief. Absent meeting the requirements of the DVPA, the court cannot reach the merits of Petitioner’s requested relief.

Petitioner opines that Hatley v. Southard (2023) 94 Cal.App.5th 579(“Hatley”) supports her position that abuse of her child may be sufficient to state a claim of emotional harm sufficient to show abuse under the DVPA. On review, that case deals with a particularized factual pattern not remotely pled here. In Hatley, the petitioner pled not just significant, repeated, ongoing control and emotional abuse (all notably distinct from any litigation related actions), but also preceding repeated physical abuse during the pendency of the relationship. Id. at 583-585. Once the respondent smothered petitioner with a pillow. Id. at 591. The case detailed repeated contact and harassment after separation, including demeaning language, threats of suicide, and actionable privacy violations. Id. at 591-592. The case contains no allegations of abuse of the petitioner’s child, just various forms of abuse not alleged here.

A far more applicable case is Gou v. Xiao (2014) 228 Cal.App.4th 812 (“Gou”), in which mother was found to have presented evidence sufficient to support a DVRO based, primarily, on witnessing the father performing repeated abuse of their mutual child. Mother had witnessed child be choked by father, slapped, kicked, and whipped with a plastic or rubber stick. Id. at 815-816. After mother fled with the child, father tracked mother and child down and attempted to transfer the child out of his new school. Id. at 816-817. Mother filed her DVPA action soon after. In her petition, mother “alleged specific and admissible facts based on her personal knowledge describing past acts perpetrated by respondent against the child and appellant.” Id. at 818. “Assuming their truth, these factual allegations would support a finding that respondent's past behavior was abusive as it had placed appellant in reasonable apprehension of imminent serious bodily injury to herself or the child, and disturbed appellant's peace by causing the destruction of her mental or emotional calm.” Ibid.

The Petition fails to opine any abuse directly by Respondent against Petitioner, instead framing the issue entirely within the context of the sexual abuse of her son more than 20 years ago, and the argued litigation abuses that occurred after the parties’ separation. Significantly distinguishable from Gou, Petitioner does not allege that she ever witnessed the abuse of her son. As the Court addresses further below, the alleged litigation abuse clearly cannot form the averred basis for abuse under the DVPA. To opine otherwise would eviscerate necessary protections within both the family court and civil court processes, and there is no authority provided by Petitioner allowing this Court to do so. The alleged abuse of her son was never witnessed by Petitioner, and Petitioner’s son has been an adult for more than 18 years. The parties have been separated for over two decades. Furthermore, the alleged abuse of her son was not newly discovered as Petitioner confirms that she learned of this abuse in 2005.

In reviewing the totality of the circumstances, even if Petitioner were capable of proving all of the allegations in the Petition, they would be insufficient to show abuse under the totality of the circumstances. The combined nature of the lack of direct abuse, the time that has passed since any abuse of Petitioner’s son, and the incredibly limited allegations of contact between the parties in the interim cannot be found to be sufficient allegations to entitle Petitioner to relief under the DVPA.

2. Litigation Privilege Fully Precludes Most of the Allegations

Petitioner also argues that the subpoena is itself abusive as an indication of litigation abuse. In reliance on this, Petitioner relies upon Family Code § 6309. While that section is an accurate reflection of law and policy for DVPA actions and discovery therein, nothing within that section purports to create an actionable claim under the DVPA for litigation conduct. Given that this conduct occurred in a manner reasonably related to Doe v. Doe, the application of the litigation privilege is not only permissible but necessary.

Generally, conduct which occurs during the pendency of litigation is privileged and cannot form the basis for a separate action, with incredibly limited exceptions. See, Civ Code § 47(b). Domestic violence covers a gamut of conduct, not all of which is physical. See Fam. Code § 6203(b). However, some conduct which meets the definition of domestic violence in other areas of expertise might not form actionable domestic violence under the DVPA. Fam. Code § 6309 provides necessary protections to petitioners in DVPA actions, preventing the very action that they turn to for relief from becoming another venue for abuse. While Petitioner avers that Respondent’s intention in serving the subpoena is nefarious, courts have held that even where the intent of the subpoena is allegedly to “intimidate, embarrass and humiliate plaintiff”, litigation privilege will preclude the action if it is reasonably related to the preceding case. Susan S. v. Israels (1997) 55 Cal.App.4th 1290, 1304. There is no evidence here that Petitioner’s subpoena is not reasonably related to Doe v. Doe. The Court is left puzzled by the shock and outrage of Petitioner (and her counsel). Respondent’s evidence clearly shows that Petitioner was named as a trial witness in that case for plaintiff. Petitioner offers no rebuttal to this showing. It is an exceedingly normal practice to depose trial witnesses in advance of trial. Similarly, the requirement of proof of service being affirmed through use of a picture is far from unusual. Nothing here rises outside normal litigation conduct protected by the litigation privilege.

Many of Petitioner’s other allegations also rely on conduct undertaken in the forum of litigation, from the parties’ settlement of their dissolution to the 2018 case filed by Respondent. See Petition ¶ 11-16. Nothing described therein[2] is anything more than litigation conduct, and accordingly is fully precluded from being actionable under the litigation privilege of Civil Code § 47.

Given that the deposition subpoena and other conduct is reasonably related to litigations, litigation privilege applies. These allegations are fully defensible under that privilege, and therefore do not assist Petitioner in her required showing of probability of prevailing.

3. Evidence in Support of Petitioner’s Allegations

Petitioner’s burden at the second stage of Anti-SLAPP analysis is to provide competent, admissible evidence that if taken as true would present a prima facie case. Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236. In support of her allegations, Petitioner proffers only the declaration of her Counsel with attached exhibits. The Petition (along with Petitioner’s declaration) is among the Exhibits attached.

This raises an issue with Petitioner’s evidence of abuse. As to Petitioner’s allegations of sexual abuse of her child in 2003, Petitioner does not plead having witnessed the alleged abuse of her son at any point. Even if the Court were to find that sexual abuse of a child over twenty years ago which Petitioner did not witness were sufficient to plead abuse under the DVPA, she only presents evidence of her mental state, and her discovery of the alleged conduct through a third party. This does not present competent, admissible evidence supporting her request for the issuance of a restraining order under the DVPA. Accordingly, Petitioner has not met her burden of production.

4. Marsy’s Law Provides Petitioner no Protection From the Alameda Subpoena

Petitioner’s contention that she is protected from having to provide deposition testimony by Marsy’s Law is specious. While Petitioner argues exhaustively that she is subject to Marsy’s Law protection as a criminal witness, the Court’s analysis need not proceed past the facial inquiry of whether the subpoena was issued to compel testify from a victim in an underlying criminal proceeding. It was not. First, Petitioner makes no allegation that she was a victim of a criminal act, instead averring without legal authority that she may find Marsy’s Law protections based on allegations of the sexual abuse of her son. Second, the subpoena was issued to Petitioner as a non-party to a civil action. Marsy’s Law only provides protection to the victim in a criminal proceeding, and has no application to civil or family actions even if there is a criminal proceeding with the same parties.  Slaieh v. Superior Court of Riverside County (2022) 77 Cal.App.5th 266, 274 (Petitioner in family law case could not rely on parallel active criminal action to avoid deposition under Marsy’s Law.). 

Petitioner’s contentions under Marsy’s Law are without merit, and accordingly cannot save her claims from preclusion under the litigation privilege. Petitioner has no probability of prevailing. The special Motion to Strike is GRANTED as to the entire Petition.

4. Petitioner’s Requested Relief

Given that Plaintiff has failed to show a probability of prevailing on the action, the various legal issues associated with her questionable forms of relief appear to be rendered moot. The Court cannot provide orders under the DVPA without a showing of abuse, and Petitioner’s entire petition must be struck. As a result, the Court need not address the relief therein.

5. Attorney’s Fees

Granting attorney’s fees on a successful Anti-SLAPP motion is mandatory. Respondent requests attorney’s fees of $17,500, but at the time of this order there is no support for anything more than the actual time expended of $15,745. Respondent avers that counsel Monteclaro expended 9.2 hours on the motion and 18.5 hours on reply at $350 an hour. Respondent further states that counsel Curliano spent 5 hours on the motion and a further 6 hours on the reply at $550 per hour.

Petitioner posits no challenge to the reasonableness of the fees requested in the motion itself. The time on reply is significant, but the hourly rates are reasonable and the reply responds to the issues raised in the opposition. Respondent’s request for fees is GRANTED in the amount of $15,745.

6. Conclusion

Based on the foregoing, the Anti-SLAPP Motion is GRANTED. Respondent’s request for fees is GRANTED in the amount of $15,745.

Respondent shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).

6.         SFL083526Mauel/Mauel Disso

This matter was continued from December 5, 2025, for oral argument regarding a Motion to Compel.  A tentative ruling was previously posted. Parties are to appear for oral argument. 

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[1] The Petition also makes reference to press statements that Respondent allegedly made in relation to the litigations. See, Petitioner’s Declaration in Support of Petition, ¶ 17-18. While these do not fall under the official proceeding itself, the applicability of free speech and the public issue related to it goes unargued by Petitioner, and quite clearly applies. This is also protected conduct under the Anti-SLAPP statute.

[2] These matters are described in vague overarching descriptions and ineffective requests for judicial notice. Based on what is presented to the Court, litigation privilege clearly applies.