Key v. Tyler, No. B283979M (D2d2 May 7, 2019)
This anti-SLAPP appeal comes down basically the same way as 2017’s Urick v. Urick decision. At least on the first part of the analysis. It holds that a no-contest petition in a probate case is subject to an anti-SLAPP motion, because the petitioner is essentially suing someone for litigating. The Court recognizes that there are some good policy reasons to go the other way but finds that the existing statutory scheme makes a no-contest petition SLAPP-able. So its up to the Legislature to fix the issue.
But unlike Urick, the petitioner here made a showing of a likelihood of success. So the motion should have been denied nonetheless.
Reversed.
Showing posts with label probate. Show all posts
Showing posts with label probate. Show all posts
Tuesday, July 2, 2019
Tuesday, April 17, 2018
A Lawsuit over a Lawsuit Meets the Bar of § 47(b)
Herterich v. Peltner, No. A147554 (D1d2, as modified Mar. 28, 2018)
Plaintiff, a disinherited Son in a probate dispute, sued Executor and his Attorney for making various statements alleged to be false during the probate case. The trial court ruled against Son on the merits. He appealed. The Court of Appeal, however, noticed that there’s something more fundamentally problematic about this lawsuit—it is a lawsuit over a lawsuit. So it ordered briefing on whether the litigation privilege in Civil Code § 47(b) bars Son’s claim. It does.
Of course, Executor and Attorney didn’t raise that defense in the trial court, so Son claims they waived it. But the Court doesn’t find that to be much of a barrier, because it presents a pure question of law applied to undisputed facts. Appellate courts have the discretion to consider purely legal questions first raised on appeal. The Court elects to do so here.
As the Court explains, § 47(b) can and has been applied to lawsuits based on alleged fraudulent representations made in the course of prior probate proceedings. The fact that the probate code puts specific duties of candor on executors and their representatives does not vitiate the privilege in some later case. None of these statutory duties are fundamentally inconsistent with privileging statements made during the course of litigation from serving as the basis of future liability in tort. To the contrary, if a party is defrauding the court in a probate proceeding, the remedy for that fraud is in the probate case itself—including various procedures that permit for post-judgment relief—not by filing a separate lawsuit.
Affirmed.
Plaintiff, a disinherited Son in a probate dispute, sued Executor and his Attorney for making various statements alleged to be false during the probate case. The trial court ruled against Son on the merits. He appealed. The Court of Appeal, however, noticed that there’s something more fundamentally problematic about this lawsuit—it is a lawsuit over a lawsuit. So it ordered briefing on whether the litigation privilege in Civil Code § 47(b) bars Son’s claim. It does.
Of course, Executor and Attorney didn’t raise that defense in the trial court, so Son claims they waived it. But the Court doesn’t find that to be much of a barrier, because it presents a pure question of law applied to undisputed facts. Appellate courts have the discretion to consider purely legal questions first raised on appeal. The Court elects to do so here.
As the Court explains, § 47(b) can and has been applied to lawsuits based on alleged fraudulent representations made in the course of prior probate proceedings. The fact that the probate code puts specific duties of candor on executors and their representatives does not vitiate the privilege in some later case. None of these statutory duties are fundamentally inconsistent with privileging statements made during the course of litigation from serving as the basis of future liability in tort. To the contrary, if a party is defrauding the court in a probate proceeding, the remedy for that fraud is in the probate case itself—including various procedures that permit for post-judgment relief—not by filing a separate lawsuit.
Affirmed.
Monday, March 26, 2018
It's the Disloyalty, Not the Litigation
Gaynor v. Bulen, No. D070907 (D4d1 Jan. 23, 2018)
This is a probate dispute where some beneficiaries of a trust are suing another beneficiary for breach of fiduciary duty for allegedly improperly meddling with the decisions of the trustees. A handful of the alleged bad acts consist of participation in earlier phases of the probate litigation. So the Meddler brought an anti-SLAPP motion, which the trial court denied, and now the Court of Appeal now affirms.
In a decision that heavily relies on the Supreme Court’s decision in Park, the Court holds that the incidents of litigation participation in the complaint are simply examples in an overarching claim that is based on improperly and disloyally favoring some beneficiaries over the others. That conduct is just evidence of a claim that is not fundamentally based on petitioning.
Meddler tries to avoid that argument by relying on Baral, another recent Supreme Court case, which says that courts can parse allegations within a claim and excise factually and legally unsupported allegations that, although not constituting the whole claim, nonetheless are based on protected activities. But the Court here says Baral can’t parse as finely as Meddler wants it to without running afoul of Park. At the end of the day, the claim is based on Meddler’s disloyalty, with the litigation activity simply being evidence of that, not the crux of the claim.
Affirmed.
This is a probate dispute where some beneficiaries of a trust are suing another beneficiary for breach of fiduciary duty for allegedly improperly meddling with the decisions of the trustees. A handful of the alleged bad acts consist of participation in earlier phases of the probate litigation. So the Meddler brought an anti-SLAPP motion, which the trial court denied, and now the Court of Appeal now affirms.
In a decision that heavily relies on the Supreme Court’s decision in Park, the Court holds that the incidents of litigation participation in the complaint are simply examples in an overarching claim that is based on improperly and disloyally favoring some beneficiaries over the others. That conduct is just evidence of a claim that is not fundamentally based on petitioning.
Meddler tries to avoid that argument by relying on Baral, another recent Supreme Court case, which says that courts can parse allegations within a claim and excise factually and legally unsupported allegations that, although not constituting the whole claim, nonetheless are based on protected activities. But the Court here says Baral can’t parse as finely as Meddler wants it to without running afoul of Park. At the end of the day, the claim is based on Meddler’s disloyalty, with the litigation activity simply being evidence of that, not the crux of the claim.
Affirmed.
Monday, October 10, 2016
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.
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.
Sunday, August 7, 2016
Dead Men Don't Sit for Judgment Debtor Exams
Torjesen v. Mansdorf, No. B263377 (D2d4 Jul. 5, 2106)
To collect under California’s Enforcement of Judgments Law, you need to levy before the debtor dies. Otherwise, under Code of Civil Procedure § 686.020, your only recourse is in probate. Here, a creditor obtained a judgement before the debtor died, but did not levy debtor’s property until after he died. Some third party then made a claim to the levied property, which the trial court invalidated under the EJL. That order became final when the third party failed to appeal.
The third party now—two years later—seeks to invalidate the order, claiming that the creditor had no recourse to the EJL for a post-mortem levy. That might be true. But the order was only voidable, not void. While the statutory scheme clearly required the matter to be addressed in probate, it did not fundamentally deprive the trial court of subject matter jurisdiction. So the error was substantive, not jurisdictional. That made it erroneous or voidable, but not so void that it was subject to collateral attack after the judgment became final.
Affirmed.
To collect under California’s Enforcement of Judgments Law, you need to levy before the debtor dies. Otherwise, under Code of Civil Procedure § 686.020, your only recourse is in probate. Here, a creditor obtained a judgement before the debtor died, but did not levy debtor’s property until after he died. Some third party then made a claim to the levied property, which the trial court invalidated under the EJL. That order became final when the third party failed to appeal.
The third party now—two years later—seeks to invalidate the order, claiming that the creditor had no recourse to the EJL for a post-mortem levy. That might be true. But the order was only voidable, not void. While the statutory scheme clearly required the matter to be addressed in probate, it did not fundamentally deprive the trial court of subject matter jurisdiction. So the error was substantive, not jurisdictional. That made it erroneous or voidable, but not so void that it was subject to collateral attack after the judgment became final.
Affirmed.
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