Form, Function, Pleading, Probate

Urick v. Urick, No. B278257 (D2d5 Oct. 5, 2017)

After Mother died, Sister, the trustee of Mother’s trust, petitioned for reformation of the trust to disinherit Brother. The trust docs contained a no contest clause, which Brother tried to enforce by filing a petition of his own. Sister responded with an anti-SLAPP motion, which the trial court granted.

Brother concedes that his petition literally falls within the anti-SLAPP statute’s “arising from” test, because his claim is that Sister violated the no contest clause by filing for reformation. That is, per the Supreme Court’s decision in Park, Sister’s filing of her petition was an essential element of his claim. But he argues that applying the anti-SLAPP statute in this context is nonetheless inconsistent with probate policy and procedure when it comes to no contest clauses and thus should not be applied in this case.

Generally speaking, in probate, civil procedure rules apply unless they are inconsistent with the Probate Code. See Probate Code § 1000. So the question is, are the statutes authorizing no-contest clauses at odds with the Code of Civil Procedure’s right to file a motion to strike litigation that arises from the filing of other litigation?

The Court of Appeal here says no. It acknowledges the probate policies that allowing no-contest clauses—avoiding litigation, honoring the donor’s intent, avoiding discord between beneficiaries—are tough to square with the affording an anti-SLAPP remedy on a no-contest petition. But given that there’s no textual inconsistency between the Probate Code and the anti-SLAPP statute, the court finds that resolving these policy tensions are the Legislature’s problem.

Regardless, Brother showed he had a probability of prevailing. So the motion should have been denied anyway.

Reversed.

Applying the anti-SLAPP statute in this context makes me uneasy. It’s not that there are no probate circumstances where it make sense to apply the anti-SLAPP statute. Indeed, the court here cites one where I found the analysis to be pretty straightforward. See Greco v. Greco, 2 Cal. App. 5th 810 (2016). It makes sense to apply the anti-SLAPP statute to probate postures that don’t look much different than ordinary civil litigation. E.g., id. (claim for constructive fraud). But that’s not always the case.

This is out of my lane, but one area where probate practice seems somewhat different than regular civil litigation is in who pleads what through what form. Brother filed his “no-contest petition” as a grounds to obtain denial of Sister’s reformation petition. If Brother would be injured by the reformation, isn’t the no contest point essentially an affirmative defense? The anti-SLAPP statute applies to “causes of action,” which has been construed to include “claims” and “theories of recovery.” § 425.16(b)(1); see also Baral v. Schnitt. But nothing has ever applied it to affirmative defenses, even ones that can specifically arise from other litigation—defenses like estoppel, release, and settlement and accord. Like Brother’s petition, these could “arise from” prior litigation activity, but they can’t draw an anti-SLAPP motion because an affirmative defense isn’t a lawsuit and thus can’t be a SLAPP. 

So while I make no cavil with the court’s holding that there’s nothing in the Probate Code that is expressly contradictory to the anti-SLAPP statute, it seems like a more functional and less formalistic analysis might possibly have yielded a different result on prong one.