Taking Isn't, But Talking Is

Greco v. Greco, No. C078369 (D3 Aug. 23, 2016) 

In his capacity as trustee of his parents’ trust and estate, Son uses the trust’s funds to engage in a bunch of allegedly poorly conceived litigation against his Sister. Sister sues Son, alleging he’s breaching his duty of trustee by wasting the res. Son files an anti-SLAPP motion, which is denied. He appeals.

The Court of Appeal quite sensibly finds that the gist of the suit is the wrongful taking of funds from the trust and estates—as opposed to the litigation being bankrolled with that money—as thus that the case doesn’t arise from any protected activity. Because it is the taking that makes Son’s actions unlawful, that is the relevant conduct to the analysis. The sole exception was a claim for constructive fraud, which allegedly arises from Son’s misrepresentations about the lawsuit. Talking about a lawsuit is protected activity, so Son met the first part of the test on that claim.

As to the merits on the constructive fraud claim, the trial court hadn’t addressed them. It notes that the obvious bar to success—the litigation privilege in Civil Code § 47(b)—doesn’t apply because the statements at issue were not made to a court or any party to the litigation. Thus the case needed to be reversed for a determination of potential success on the merits as the the constructive fraud claim only.

Reversed and reminded, in limited part.