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Anti SLAPPIn heated California trust and estate litigation, one party’s petition to the probate court often leads the other side to file a retaliatory petition. If Sally petitions in Sacramento County Superior Court to contest Mom’s trust amendment on the ground that Mom had Alzheimer’s disease and lacked sufficient mental capacity to reduce Sally’s share, brother Bob may file a petition to enforce the no contest clause in the trust against Sally and thus seek to intimidate her.

Yet retaliatory claims can be radioactive for those who assert them given California’s “anti-SLAPP” statute, codified at Code of Civil Procedure section 425.16. “SLAPP” is an acronym for “Strategic Lawsuit Against Public Participation.” The statute creates a “special motion to strike” frivolous claims that aim to chill the valid exercise of speech and petition rights. A petitioner faced with an anti-SLAPP motion quickly finds himself on the hot seat. If he lacks evidence to substantiate his claims, the court will dismiss them and require him to pay his opponent’s legal expenses.

The anti-SLAPP statute has been around since 1992, but has drawn increasing attention among California trust and estate litigators. In January 2016, Eunice Lim and Douglas Lawson published “Enforcing No-Contest Clauses in the Face of Anti-SLAPP Motions” in Los Angeles Lawyer magazine. Also in January, Brendan Begley presented a helpful set of scenarios to the Probate Section of the Sacramento County Bar Association on the theme “Don’t Get SLAPPed Around in Probate Court.”

Two-Step Analysis

The anti-SLAPP statute requires a two-step analysis. First, the respondent (probate-speak for “defendant”) must show that the claim against her arises from “protected activity,” such as the respondent’s assertion of claims in a court proceeding. Second, if the respondent makes that showing, the court looks to the petitioner (probate-speak for “plaintiff”) to show that he has a reasonable probability of prevailing on the merits. The petitioner must present both a viable legal theory and sufficient facts to prove that theory.

Anti-SLAPP motions are filed within 60 days of the start of litigation and put a hold on the discovery process that allows the parties to obtain information from each other and third parties. Thus, if a petitioner presents a claim that arises from protected activity, he must have enough evidence to validate that claim at the outset of the case or run the expensive risk of losing the anti-SLAPP motion.

“Protected Activity” May Encompass Estate Planning, Administration and Court Proceedings

A few cases illustrate the potency of the anti-SLAPP statute in the context of California trust and estate litigation.

In Cabral v. Martins (2009) 177 Cal.App.4th 471, the California Court of Appeal considered the claims of Tammy Cabral who was chasing unpaid child support from her former husband, James Cabral. James’ mother (Edwina) hired counsel to change her will so as to disinherit James in favor of his siblings and thus deprive Tammy of a potential source of recovery. Tammy sued James and his siblings, and their lawyers, invoking child support evasion statutes. The court held that the lodging of Edwina’s will with the probate court, the initiation of probate proceedings, and the defense of Tammy’s claims were protected petitioning activity. More of a stretch was the conclusion that the revision of Edwina’s will was “protected activity” because wills are effective only when implemented through probate proceedings. The appellate court ultimately affirmed the lower court’s award of some $60,000 in legal fees against Tammy, thus saddling her with a hefty expense for pursuing child support.

More recently, the U.S. Ninth Circuit Court of Appeals considered claims made by the sons of concert promoter Bill Graham, who died in a helicopter accident in 1991. In Graham-Sult v. Clainos (9th Cir. 2013) 756 F.3d 724, the sons brought numerous claims against Graham’s friend and business partner, Nicholas Clainos, for his actions as executor of Graham’s estate and as trustee of Graham’s testamentary trusts. The sons also sued Clainos’ lawyers. The appellate court parsed through the sons’ claims and found that six of them arose from protected activity and thus were subject to the defendants’ anti-SLAPP motion. For example, Clainos’ statements to the probate court and the sons about Graham’s assets and the probate proceedings were “protected activities,” as were Clainos’ activities in characterizing, valuing and distributing assets because they were “preparatory to probate court filings or required the probate court’s approval.”

In addition to illuminating the scope of “protected activity” covered by the anti-SLAPP statute, the Cabral and Graham-Sult cases show the power of the “litigation privilege” codified in California Civil Code section 47(b).

The litigation privilege broadly precludes civil liability (except for malicious prosecution) for oral and written communications made in a judicial proceeding, including statements made before and during trial. Statements made in litigation are often both “protected activity” under the anti-SLAPP statute and absolutely protected under the litigation privilege. This means that respondents faulted for misconduct in litigation can use the anti-SLAPP statute to quickly and effectively terminate claims against them, earning an attorney’s fee award along the way. Attacking Clainos for what he and his attorneys told the probate court was doomed from the start, as the Ninth Circuit found in its opinion.

Aggressive Efforts to Enforce No Contest Clauses May Backfire

Rosenberg v. Reid, an unpublished case issued in October 2015 by the California Court of Appeal, shows the hazards of a premature effort to enforce a no contest clause. Brigette Reid sued her sister Sheryl Rosenberg, complaining that Rosenberg had unilaterally seized control of a business left to them by their father. Reid attacked the validity of the operating agreement of the business.

Rosenberg retaliated by filing a petition for disinheritance, seeking a judgment that Reid’s suit constituted a prohibited contest under the no contest clause of their father’s trust.

The appellate court ruled in favor of Reid on the ground that the no contest clause in the trust did not apply to the operating agreement such that Rosenberg would be unable to prevail, leaving Rosenberg to pay the legal expenses that Reid incurred in bringing the anti-SLAPP motion.

Under the more common scenario referenced in the first paragraph of this post, if Bob files a petition to enforce a no contest clause, he must be ready to show that Sally’s trust lacks probable cause within the meaning of California Probate Code section 21311. That is, he must show that the facts known to Sally would not cause a reasonable person to believe that there is a reasonable likelihood that the trust amendment will be invalidated after an opportunity for further investigation or discovery. In other words, he must show that Sally’s supporting facts are flimsy. If Sally has presented her trust amendment contest petition in a compelling way, with supporting facts, Bob may be unable to carry his burden under the second step of the anti-SLAPP motion analysis.

Of course, this is a problem of Bob’s own making because he could have deferred his petition to enforce the no contest clause until after the Court rules on Sally’s petition.

Closing Thought

Bringing claims against a trustee or executor for positions taken in court proceedings is a hazardous strategy given California’s anti-SLAPP statute. Litigants should think through the prospect of defending an anti-SLAPP motion before initiating a retaliatory round of litigation.