Case Name: Laurie Hall v. Phillip Bollock, Angela Ling and Does 1-10
Case No.: 18CV325347

This is an action based on a former nonmarital relationship between Plaintiff Laurie Hall (“Plaintiff”) and Defendant Philip Bullock (“Bullock”) that was first filed in Napa County and transferred to this county by order of the Napa County Superior Court. The operative pleading is Plaintiff’s First Amended Complaint (“FAC”) first filed in Napa County and refiled in this County on March 7, 2018. It states six causes of action against Defendant Bullock and Defendant Angela Ling (“Ling”), Defendant Bullock’s wife: 1) Breach of Contract (alleged against Bullock only); 2) Specific Performance (alleged against Bullock only); 3) Declaratory Relief (alleged against Bullock only); 4) Fraud and Deceit (alleged against Bullock only); 5) Intentional Interference with Contract (alleged against Ling only), and; 6) Intentional Infliction of Emotional Distress (“IIED,” alleged against both Bullock and Ling).

Actions such as this one are sometimes referred to as “Marvin” actions, referring to the California Supreme Court’s decision in Marvin v. Marvin (1976) 18 Cal.3d 660 (“Marvin”), which recognized the existence of broad contractual and equitable rights of a party in a nonmarital living arrangement. The Marvin court found that although the Family Law Act did not govern the distribution of property acquired during a nonmarital relationship, lower courts should enforce express contracts between nonmarital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services. (Marvin, supra, 18 Cal.3d at pp. 671-672.) In Marvin, the Court held that the defendant’s agreement to “provide for all of plaintiff’s financial support and needs for the rest of her life” was sufficient to state a cause of action for breach of an express contract. (Marvin, supra, 18 Cal.3d at pp. 666-667.)

The Marvin Court also recognized that an implied contract might exist between nonmarital partners based on a “tacit,” or unspoken, understanding. (Marvin v. Marvin (1976) 18 Cal.3d 660, 665.) The Court explained that adults living together and having a romantic relationship can make a wide variety of arrangements concerning their earnings and property rights. “[T]hey may agree to pool their earnings and to hold all property acquired during the relationship in accord with the law governing community property; conversely they may agree that each partner’s earnings and the property acquired from those earnings remains the separate property of the earning partner.” (Marvin, supra, 18 Cal.3d at p. 674.) They may choose to pool only part of their earnings and property, to form a partnership or joint venture, or to hold property acquired as joint tenants or tenants in common, or agree to any other such arrangement. (Id. at fn. 10.) The court further held that in the absence of an express contract, the court should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties, and that courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case. (Id. at p. 684.)

Currently before the Court are three matters: 1) Defendant Bullock’s demurrer to all claims in the FAC alleged against him; 2) Defendant Ling’s special motion to strike the FAC’s fifth and sixth causes of action, and; 3) Defendant Ling’s demurrer to the FAC’s fifth and sixth causes of action.

As an initial matter the Court notes that Defendants appear to have failed to comply with Code of Civil Procedure (“CCP”) §430.41, as neither Demurrer is accompanied by the now required declaration regarding the parties’ efforts to meet and confer on the issues raised. As a failure to meet and confer is not, by itself, grounds for overruling a demurrer the Court will overlook the parties’ presumed failure to meet and confer in this instance. The parties are directed to comply with applicable law in the future.

1. Defendant Bullock’s demurrer to the FAC
The Court in ruling on a demurrer treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A general demurrer does not lie to only part of a cause of action. If there are sufficient allegations to entitle plaintiff to relief, other allegations cannot be challenged by general demurrer. (See Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167; Kong v. City of Hawaiian Gardens Redevelop. Agency (2003) 108 Cal App 4th 1028, 1046; PH II v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 [“A demurrer does not lie to a portion of a cause of action.”].)

Demurrer to entire FAC
Defendant Bullock’s demurrer to the entire FAC on uncertainty grounds is OVERRULED. Uncertainty is a disfavored ground for demurrer and is typically sustained only where the pleading is so bad the responding party cannot reasonably respond. (See Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616 [“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”]) While the FAC is not a model of clarity, and it is a poor pleading practice to base causes of action entirely on prior allegations incorporated by reference (as the FAC’s first cause of action does), it is clear from Bullock’s other arguments directed at specific causes of action that he understands what each cause of action in the FAC at least attempts to allege, and that there is no true uncertainty.

Demurrer to first, second and third causes of action based on statue of frauds
Defendant Bullock’s demurrer to what he terms the FAC’s “contract-based causes of action” (the first cause of action for breach of contract, the second cause of action for specific performance and the third cause of action for declaratory relief) on the ground that all three causes of action fail to state sufficient facts because they are barred by the statute of frauds is OVERRULED.

Courts have regularly found that the doctrine of equitable estoppel usually overcomes a statute of frauds defense in Marvin lawsuits. (See Marvin, supra, 18 Cal.3d at p. 674, fn. 9; see also Whorton v. Dillingham (1988) 202 Cal.App.3d 447, 456; Cline v. Festersen (1954) 128 Cal.App.2d 380, 386.) “‘The doctrine of estoppel to assert the statute of frauds has been consistently applied by the courts of this state to prevent fraud that would result from refusal to enforce oral contracts in certain circumstances. Such fraud may inhere in the unconscionable injury that would result from denying enforcement of the contract after one party has been induced by the other seriously to change his position in reliance on the contract ….’ ” (Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1068 citing Monarco v. Lo Greco (1950) 35 Cal.2d 621, 623.)

“Equitable estoppel is not concerned with the running and suspension of the limitations period, but rather comes into play only after the limitations period has run and addresses itself to the circumstances in which a party will be estopped from asserting the statute of limitations as a defense to an admittedly untimely action because his conduct has induced another into forbearing suit within the applicable limitations period. Its application is wholly independent of the limitations period itself and takes its life, not from the language of the statute, but from the equitable principle that no man will be permitted to profit from his own wrongdoing in a court of justice. Thus, because equitable estoppel operates directly on the defendant without abrogating the running of the limitations period as provided by the statute, it might apply no matter how unequivocally the applicable limitations period is expressed.” (Battuello v. Battuello (1998) 64 Cal.App.4th 842, 847-848; see also Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 686 (quoting Battuello). “A defendant will be estopped to invoke the statute of limitations where there has been ‘some conduct by the defendant, relied on by the plaintiff, which induces the belated filing of the action.’ It is not necessary that the defendant acted in bad faith or intended to mislead the plaintiff. It is sufficient that the defendant’s conduct in fact induced the plaintiff to refrain from instituting legal proceedings. ‘Whether an estoppel exists—whether the acts, representations or conduct lulled a party into a sense of security preventing him from instituting proceedings before the running of the statute, and whether the party relied thereon to his prejudice—is a question of fact and not of law.’” (Shaffer v. Debbas (1993) 17 Cal.App.4th 33, 43, internal citations omitted.)

Since the determination of estoppel is one for the trier of fact, a Plaintiff need only state sufficient allegations to support a claim for equitable estoppel to withstand a demurrer. Here the FAC’s general allegations, incorporated by reference into all three targeted causes of action, adequately allege specific facts—alleged conduct and representations by Defendant Bullock relied upon by Plaintiff—that would allow a trier of fact to reasonably conclude that equitable estoppel bars Defendant Bullock from asserting a statute of frauds defense to the first, second and third causes of action.

Demurrer to first, second and third cause of action based on heart balm statute
Defendant Bullock’s demurrer to the FAC’s “contract based causes of action” on the ground that they fail to state sufficient facts because they are, according to Bullock, all unenforceable under Civil Code §43.5 (sometimes referred to as a “heart balm” statute) and the decision in Boyd v. Boyd (1964) 228 Cal.App.2d 374 (“Boyd”) is OVERRULED.

As an initial matter the Court notes again that a demurrer does not lie to only part of a cause of action and, to the extent the alleged promise to marry (FAC at 8) is incorporated by reference into the first, second, and third causes of action, this by itself is not a basis for sustaining the demurrer against any of the three causes of action.

More substantively, in Marvin, the Supreme Court expressly rejected an argument based on Boyd that the anti-heart-balm statutes (particularly Civil Code section 43.5 subdivision (d)) bar a cause of action in the nonmarital context. The Marvin court held that “section 43.5 is not reasonably susceptible to the interpretation advanced by defendant, a conclusion demonstrated by the fact that since section 43.5 was enacted in 1939, numerous cases have enforced pooling agreements between nonmarital partners, and in none did court or counsel refer to section 43.5.” (Marvin, supra, 18 Cal.3d at p. 674.) The Supreme Court in Marvin also specifically held that rights under a cohabitation agreement may be established by way of an action for declaratory relief. (Marvin, supra, 18 Cal.3d at 675; Byrne v. Laura, supra, 52 Cal.App.4th at 1073.)

Demurrer to fourth cause of action (fraud and deceit)
Fraud requires a) misrepresentation (false representation, concealment or nondisclosure); b) knowledge of falsity; c) intent to defraud/induce reliance; d) justifiable reliance; and e) resulting damage. (Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363.) “An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract. [Citation.] The action is one of deceit, which requires proof that the defendant made a misrepresentation of fact or a promise without any intention of performing it. [Citation.] A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. [Citation.] Every element must be specifically pleaded. [Citation].” (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.)

Defendant Bullock makes three arguments against this claim. His first argument that the claim fails as a matter of law because the FAC “admits” his partial performance, is unpersuasive as there is no published California authority standing for the proposition that any partial performance provides a complete defense to a promissory fraud claim as a matter of law. The federal decision Bullock relies on, Kaylor v. Crown Zellerback, Inc. (9th Cir.1981) 643 F.2d 1362, is not persuasive. While the portion of that decision Bullock relies on (643 F.2d at 1368) does state that “Crown’s initial performance in accordance with its promises negates any possible inference of fraud,” the Ninth Circuit did not cite any California law to support this statement, but instead cited a 1955 decision from the Tenth Circuit that applied Utah law, Justheim Petroleum Co. v. Hammond, 227 F.2d 629 (10th Cir. 1955). The relevant portion of that decision does not help Bullock. It simply states (at p. 637) that “[t]he second cause of action is in deceit based on the theory that the defendants entered into a contract with the plaintiffs representing at the time that they intended to perform the contract, when as a matter of fact, they did not intend to perform, and intended to deceive the plaintiffs. To sustain an action of this nature, it must be shown that there was an intention on the part of the defendants at the time of the execution of the contract that they did not intend to perform it. Such fraudulent intent is not usually susceptible of direct proof and may be established by circumstances. It may not, however, be inferred alone from the fact of nonperformance of the contract. A lawful inference of such deceitful intent may be drawn only from established facts.” While something more than a mere failure to perform as promised is required to establish promissory fraud, California law is clear that fraudulent intent can be established through circumstantial evidence (See Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assoc. (2013) 55 Cal.4th 1169, 1183), and “fraudulent intent is an issue for the trier of fact to decide.” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1061.)

The second argument, that the heart-balm statute bars the entire fraud claim because it incorporates the alleged promise to marry (FAC at 8), fails to provide a basis for sustaining a demurrer because (as stated above) a demurrer does not lie to only part of a cause of action and the fraud claim is clearly based on alleged false promises beyond the promise to marry.

The third argument, that Bullock’s knowledge of the alleged falsity of his statements is insufficiently pled, is also not a basis for sustaining the demurrer. While as a general rule every element of fraud must be pled with specificity there are exceptions including that, because a Defendant’s knowledge of falsity is a fact, it may be generally pled. (See 5 Witkin, Cal. Procedure (5th Ed., 2008) Pleading §726.)

Accordingly, Defendant Bullock’s demurrer to the FAC’s fourth cause of action is OVERRULED.

Demurrer to sixth cause of action (IIED)
“A cause of action for intentional infliction of emotional distress exists when there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. A defendant’s conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. And the defendant’s conduct must be intended to inflict injury or engaged in with the realization that injury will result. Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. . . . With respect to the requirement that the plaintiff show emotional distress, this court has set a high bar. Severe emotional distress means emotional distress of such a substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051, internal quotations and citations omitted.)

“Conduct, to be ‘outrageous,’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. While the outrageousness of a defendant’s conduct normally presents an issue of fact to be determined by the trier of fact, the court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” (Trerice v. Blue Cross of Cal. (1989) 209 Cal.App.3d 878, 883 [internal citations omitted].) Many courts have dismissed intentional infliction of emotional distress claims on demurrer where the conduct is not outrageous as a matter of law. (Bock v. Hansen (2014) 225 Cal.App.4th 215, 235.) Whether a defendant’s alleged conduct is sufficiently outrageous to support a claim may be determined as a matter of law on demurrer. (See Mintz v. Blue Cross of Cal. (2009) 172 Cal.App.4th 1594, 1607-1609; Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494 (“Cochran”).)

In Cochran, the Second District Court of Appeal examined an intentional infliction of emotional distress claim in the context of a Marvin case. In that case, the trial court sustained a man’s demurrer and dismissed a complaint for intentional infliction of emotional distress brought by the man’s former longtime cohabitant and her daughter. The plaintiffs alleged that defendant left a message on the couple’s son’s answering machine that he would deliver to the daughter a ticket for an airline that had recently suffered a well-publicized crash in which many people died. In their complaint, the plaintiffs alleged that they were especially susceptible to emotional distress based on their past relationship with defendant, that defendant wished to retaliate against plaintiffs for their making public the fact of their relationship with defendant, and that defendant’s message constituted a death threat.

On appeal, the Second District affirmed the trial court’s ruling sustaining the demurrer finding that defendant’s conduct was not sufficiently extreme and outrageous to support a claim for intentional infliction of emotional distress. The court reasoned that defendant’s conduct, rather than being an actionable death threat, was the result of a feud that resulted from a bad ending to an intimate relationship. The Second District went on to state the following: “In short, the parties to an intimate relationship gone bad were now feuding. Those feuds are often accompanied by an exchange of hostile unpleasantries which are intended to sting whoever sits at the delivery end. While the pain inflicted might be real, the tort of intentional infliction of emotional distress was never intended to remove all such barbs. To hold otherwise would needlessly congest our courts with trials for hurts both real and imagined which are best resolved elsewhere.” (Cochran, supra, 65 Cal.App.4th at p. 498.) Since the complaint failed to allege facts showing that defendant intended to follow through on his threats, the court found that the phone message was nothing more than a mere insult that did not amount to extreme and outrageous conduct. (Cochran, supra, 65 Cal.App.4th at p. 499.)

Particularly in comparison with Cochran, it is evident that the facts alleged in Plaintiff’s sixth cause of action, and in the FAC as a whole, fail to state sufficient facts to support an IIED claim against Bullock as a matter of law. The alleged behavior, a more or less typical Marvin action, simply does not qualify as sufficiently “outrageous” to support an IIED claim. Accordingly, Bullock’s demurrer to the sixth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

2. Defendant Ling’s special motion to strike the FAC’s fifth & sixth causes of action
As noted above, Defendant Ling has filed a special motion to strike the fifth and sixth cause of action in the FAC, the only ones alleged against her.

When a special motion to strike is filed, the initial burden rests with the moving party to demonstrate that the challenged pleading arises from protected activity. (Code Civ. Proc. “CCP” §425.16(e); Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) “A defendant meets his or her burden on the first step of the anti-SLAPP analysis by demonstrating the acts underlying the plaintiff’s cause of action fall within one of the four categories spelled out in [CCP] section 425.16, subdivision (e).” (Collier v. Harris (2015) 240 Cal.App.4th 41, 50-51.) That section provides that an “‘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 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.” (CCP §425.16(e).) “These categories define the scope of the anti-SLAPP statute by listing acts which constitute an ‘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.’” (Collier, supra, at 51, citing CCP §425.16(e).)

Defendant Ling has satisfied the first step or prong of the analysis by establishing that the sole basis for her liability identified in the FAC (at paragraphs 25, 30, 55 and 56) is her speech, a single email sent to Plaintiff on May 8, 2017 (exhibit A to Defendant Ling’s supporting declaration) sent in response to Plaintiff’s multiple and increasingly hostile threats to sue Bullock if he did not speak to her directly rather than through his retained counsel (who at the time was Richard Bryan).

Communications made in anticipation of litigation constitute protected activity for the purposes of the anti-SLAPP statute if the communication “concern[s] the subject of the dispute” and are made in anticipation of litigation “contemplated in good faith and under serious consideration.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268; Bailey v. Brewer (2011) 197 Cal.App.4th 781, 789 (Bailey).) The “good faith” and “serious consideration” requirements exist because “[n]o public policy supports extending a privilege to persons who attempt to profit from hollow threats of litigation.” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251 (Action); Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 889 (Digerati) [“The requirement of good faith contemplation and serious consideration provides some assurance that the communication has some ‘ ‘ ‘connection or logical relation’ ’ ’ to a contemplated action and is made ‘ ‘to achieve the objects’ ’ of the litigation.”].) Clearly Ling’s communication with Plaintiff concerned the subject of the dispute; the attempted negotiations over what kind of payments Bullock would be making to Plaintiff going forward and Plaintiff’s increasingly hostile threats to sue if Bullock would not speak to her directly rather than through counsel (despite Plaintiff having retained counsel herself). Also, regardless of what Plaintiff says now about the seriousness of her threats, on May 8, 2017 when Ling sent her email it was reasonable for Ling (and Bullock) to interpret her repeated threats to sue as just that and to believe in good faith that Plaintiff was seriously contemplating litigation.

With the first step/prong satisfied the burden shifts to the plaintiff to establish the second step/prong, a “probability” that he/she/it will prevail on whatever claims are asserted against the defendant. (See CCP §425.16(b).) The plaintiff’s burden in this step “is subject to a standard similar to that used in deciding a motion for nonsuit, directed verdict, or summary judgment.” (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570.) It requires the plaintiff to show that the complaint is both legally sufficient and supported by sufficient prima facie evidence to sustain a favorable judgment. (Premier Med. Mgmt. Systems, Inc. v. Cal. Ins. Guar. Ass’n (2006) 136 Cal.App.4th 464, 476.) “The plaintiff need only establish that his or her claim has ‘minimal merit’ [citation] to avoid being stricken.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (“Soukup”).) “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 evidence considered is that which would be admissible at trial. (Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.) The court considers both parties’ pleadings and evidence without weighing “the credibility or comparative probative strength”; however, “it should grant the motion if, as a matter of law, the defendant’s evidence … defeats the plaintiff’s attempt to establish evidentiary support for the claim.” (Soukup, supra, at p. 291.) “The plaintiff may not rely on the allegations in the complaint or assertions in a declaration based on information and belief.” (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1368; accord Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497.) Affidavits or declarations not based on personal knowledge, or that contain hearsay or impermissible opinions, or that are argumentative, speculative or conclusory, are insufficient to show a “probability” that the plaintiff will prevail. (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26; Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 714.)

Plaintiff cannot meet her burden on the second step/prong of the analysis because the litigation privilege provides Defendant Ling a complete defense to the fifth and sixth causes of action. Courts view a pre-litigation communication as privileged under Civil Code § 47 if it “relates to litigation that is contemplated in good faith and under serious consideration.” (Action, supra, 41 Cal.4th at p. 1251; Rubin v. Green (1993) 4 Cal.4th 1187, 1193 [communications with some relation to judicial proceedings are absolutely immune from tort liability by the litigation privilege].) “The litigation privilege is absolute; it applies, if at all, regardless whether the communication was made with malice or the intent to harm. Put another way, application of the privilege does not depend on the publisher’s motives, morals, ethics or intent. Although originally applied only to defamation actions, the privilege has been extended to any communication, not just a publication, having some relation to a judicial proceeding, and to all torts other than malicious prosecution.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913, internal citations and quotation marks omitted.) “Any doubt about whether the privilege applies is resolved in favor of applying it.” (Ibid; Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1429–1431 [“Doubts about the privilege’s applicability are resolved in favor of its use.”].)

The Court notes that even if it were assumed for purposes of argument that the litigation privilege did not apply Plaintiff has not met her burden to show that her claims against Ling are both legally sufficient and supported by sufficient prima facie evidence to sustain a favorable judgment. None of the opposing declarations establish a probability that Plaintiff will prevail on her intentional interference with contract claim. In her opposing declaration Plaintiff simply states her conclusion that, because Bullock stopped paying her after Ling’s email, Ling interfered with the purported “contract” with Bullock. “The plaintiff may not rely on the allegations in the complaint or assertions in a declaration based on information and belief.” (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1368; accord Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497.) Affidavits or declarations not based on personal knowledge, or that contain hearsay or impermissible opinions, or that are argumentative, speculative or conclusory, are insufficient to show a “probability” that the plaintiff will prevail. (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26; Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 714.) Exhibit H to Defendant Bullock’s declaration in support of the motion to strike, a May 7, 2017 email from Bullock’s attorney at the time (Richard Bryan) to Plaintiff’s attorney at the time (Jackie Martens), indicates that the decision to stop payments in response to Plaintiff’s threats to sue was made by Bullock (on his own or jointly with Ling), and was made before Plaintiff and Ling communicated.

As for the IIED claim, Plaintiff has not shown a probability of prevailing because the claim (and the FAC as a whole) fails to allege conduct by Ling that could reasonably be considered sufficiently “outrageous” to support an IIED claim. (See Hughes v. Pair, supra, 46 Cal.4th at pp. 1050-1051.)

Having prevailed on the special motion to strike Defendant Ling is entitled to recover her attorneys’ fees and costs. “[A]ny SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131; see also Vargas v. City of Salinas (2011) 200 Cal.App.4th 1331, 1348). CCP § 425.16(c) is ambiguous as to what “fees and costs” are recoverable, but legislative history shows it was it was intended to allow only fees and costs incurred on the motion to strike itself and not the entire litigation. (Lafayette Morehouse, Inc. v. Chronicle Pub. Co. (1995) 39 Cal.App.4th 1379, 1383; see also Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772 [A prevailing defendant on an anti-strategic lawsuit against public participation (SLAPP) motion may recover attorney fees and costs only on the anti-SLAPP motion, not the entire suit.]). The Court notes that Defendant Ling has not yet requested her attorneys’ fees and costs or submitted any evidence (such as an attorney declaration) establishing the amount of those fees and costs.

3. Defendant Ling’s demurrer to the FAC’s fifth & sixth causes of action
Defendant Ling’s demurrer to the FAC’s fifth and sixth causes of action as alleged against her is OVERRULED as MOOT given the result of her special motion to strike. The associated request for judicial notice in support of the demurrer is also denied as moot.