The Abuse of Anti-SLAPP Motions in Probate and Civil Matters

Litigants are still finding new applications for California’s powerful (and sometimes infamous) anti-SLAPP statute in civil matters, and as evidenced by the recently resolved Starr v. Ashbrook, probate courts are no exception.

The case revolved around a contentious estate battle between the children of a 90-year-old Laguna Beach man and his girlfriend and trustee. The trustee attempted to pay costs associated with the back-and-forth series of legal contests out of the estate’s pocket, a move challenged by the man’s children. The trustee responded by filing a special motion to strike (the anti-SLAPP) on the theory that he was being sued for filing and funding litigation, a protected activity.

The trial court denied the anti-SLAPP motion, a decision now affirmed by the appellate court panel, who noted that misconduct in the administration of the trust and its assets are not actions in furtherance of a person’s free speech.

“The core injury-producing conduct asserted by [the plaintiff] Jonathan in the surcharge cause of action is the waste and misuse of trust assets, [he does] not allege that either the petition for instructions or the elder abuse lawsuit in itself produced the injury or gave rise to liability,” wrote the panel. “The injury allegedly suffered is the loss of trust assets and the reduction of the trust corpus, and that injury was produced by the waste and misuse of those assets by the trustee.”

The defeat of the trustee’s anti-SLAPP motion is certainly not surprising, given most attempts to invoke the statute in probate courts have similarly failed. But this provision is often invoked not with an expectation that the challenge will prevail – the priority is often instead frustrating your opponent, wasting their time and resources, and/or delaying litigation. It’s become a particular favorite after the Second District Court of Appeal’s decision in Urick vs. Urick (2017) found the application of the statute applicable in probate petitions seeking to enforce no contest clauses.

In making its decision, the panel itself recognized that its application of anti-SLAPP statute in such cases was “inconsistent” with the intent behind anti-SLAPP; to avoid the unnecessary waste of time and money associated with “strategic” litigation.

“The language of the anti-SLAPP statute is clear and unambiguous, and it has been applied to other probate court petitions,” the panel wrote. “There may be valid reasons to exempt enforcement of no contest clauses from the anti-SLAPP statute, but if so, it is for the Legislature to create an exception.”

To date, however, what few attempts by the legislature have been made to amend Cal. Code of Civil Procedure Section 425.17 – which controls exemptions to Cal. Code of Civil Procedure Section 425.16, the anti-SLAPP statute – have fizzled out before revisions could be formally proposed.

This is a problem that legislators should really get ahead of, as anti-SLAPP abuse in probate and other civil courts will only worsen as entrenched litigants and their clever attorneys continue to test the boundaries of the provisions’ application. When judicial panels are telling you that your laws, as written, are undermining their own intent, you should listen.