Updated 2/1/18: In Gaynor v Bulen (Jan. 23, 2018, D070907) 2018 Cal App Lexis 53, the court held that a petition alleging that trust assets were improperly used in probate litigation was not a cause of action arising from protected activity under the anti-SLAPP statute. Although the alleged breach of loyalty may have been carried out by the filing of probate petitions, the petitioning activity itself was not the basis of the claim.
Despite its name, a statute designed to deter strategic lawsuits against public participation (SLAPP) has been applied to a variety of private disputes, including probate proceedings, as a recent decision illustrates.
Under the so-called anti-SLAPP statute (CC §425.16(b)(1)), a cause of action “arising from any act in furtherance of a person’s right to petition in connection with a public issue” is subject to a special motion to strike.
In Urick v Urick (2017) 15 CA5th 1182, the trustee filed a petition to reform the trust to eliminate distributions to a beneficiary. The trustee claimed that the trust document didn’t reflect the settlor’s intent. The beneficiary in turn petitioned for instructions that the trustee’s petition for reformation violated the trust’s no contest clause.
The trial court granted the trustee’s motion to strike the beneficiary’s petition under the anti-SLAPP statute. But the appellate court reversed, finding that the beneficiary had established a reasonable probability of prevailing on the merits as provided in the statute.
The appellate decision seems questionable. Unless we’re considering any court proceeding as necessarily public, the beneficiary’s petition in Urick doesn’t appear to involve a public issue “or an issue of public interest” as required in CCP §425.16(e)(1). So it’s hard to see how the anti-SLAPP statute could possibly apply.
Moreover, the trial court appears to have the better view that the no contest clause was unenforceable because the trustee’s petition for reformation was brought on the grounds of mistake and misrepresentation, not duress, fraud, or undue influence as required for a direct contest under Prob C §21310. The trial court also seems correct that the no contest clause was unenforceable because the trustee’s petition for reformation was brought in her capacity as trustee, even though the trustee was also a beneficiary of the trust.
From that perspective, the attempted application of the no contest clause against the trustee’s interest in Urick appears to represent the kind of tactical litigation the statutory limitation on enforceability was intended to avoid.
Other CEBblog™ posts you may find interesting:
- No-Contest Clauses May Not Be the Deterrent You Think
- How to Amend a Trust
- Checklist: Does the Anti-SLAPP Statute Apply?
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