Anti-SLAPP Motions in Probate Litigation | Kevin J. Moore & Associates

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Anti-SLAPP Motions in Probate Litigation

The California legislature in 1992 enacted an Anti-SLAPP statute in order to protect individuals from lawsuits that challenge their constitutionality protected rights for free speech and to petition the government. These suits are commonly referred to as Strategic Lawsuits Against Public Participation or SLAPP suits, and the California law’s Anti-SLAPP statute provides tools to end such suits quickly and inexpensively.

The statute, codified in California Code of Civil Procedure Section 425.16, provides defendants with powerful tools to challenge a wide array of lawsuits that relate to protected activity. Specifically, under section 425.16, defendants may file a special motion to strike a complaint that includes allegations that the defendant engaged in protected activity. Filing the anti-SLAPP special motion immediately stops the discovery process. In contrast to ordinary motions to challenge some or all portions of a complaint, the special motion for anti-SLAPP motions provides mandatory attorneys’ fees for the prevailing party, and the denial of an Anti-SLAPP special motion can be immediately appealable. Thus, defendants who file anti-SLAPP special motions can delay an underlying lawsuit even if their special motions are denied by the courts. Because of its procedural benefits, the volume of anti-SLAPP special motions has increased dramatically over the years, and has been invoked in a broad array of business litigation contexts and even in probate litigation.

Special motions filed under California’s. Anti-SLAPP statute are not a panacea, and the recent case of Greco v. Greco (2016) 2 Cal.App.5th 810. demonstrates that in the context of probate litigation they can be a double-edged sword. Greco involves a series of lawsuits filed by siblings, Clyde Jr. and Cara Lyn Greco. Shortly before their mother’s death, Clyde Jr. brought an action against his sister, Carla, requesting an accounting. That lawsuit was followed by several others involving various Greco family members, and properties and assets for which Clyde Jr. was the trustee. In 2014, Cara Lyn filed two lawsuits against Clyde Jr. alleging that he had misspent money from trusts he controls to pursue prior family related litigation. Cara Lyn’s lawsuits sought to recover the allegedly misspent funds.

Clyde Jr’s lawyers were faced with an interesting strategic choice. Do Cara Lyn’s lawsuits accusing Clyde Jr. of spending money to pursue litigation constitute an attack on protected activity? Under section 425.16, filing a lawsuit and seeking redress from the courts clearly is protected activity, but is an allegation that Clyde Jr. improperly took funds to fund the lawsuits fall within the anti-SLAPP statute? Clyde Jr.’s lawyers did file two separate anti-SLAPP special motions, and the trial court denied them. He then invoked his right for an immediate appeal and took the case to the Third Appellate District of the California Court of Appeal. In August 2016, the appellate court filed its closely-reasoned opinion that largely sided with Cara Lyn. The appellate court agreed with the trial court that Cara Lyn’s allegations were primarily related to Clyde Jr.’s alleged mishandling of money, not free speech or other protected activity. The appellate court therefore denied the appeal with respect to one lawsuit, which continued to the discovery phase. The appellate court returned the second lawsuit to the trial court to make additional determinations with respect to a single cause of action for constructive fraud.

In Greco, the anti-SLAPP special motions brought on behalf of Clyde Jr. didn’t end either lawsuit, but they did prolong them and make them more expensive. The special motions did, however, prevent Cara Lyn from engaging in discovery for more than a year. So was it worthwhile for Clyde Jr. to pursue the anti-SLAPP special motions? It’s impossible to know without knowing the clients and what they want. What is clear, however, that familiarity and experience with California Anti-SLAPP law is an important consideration for anyone who is drafting or defending complaints that allege that a trustee acted improperly when they spent funds to pursue a lawsuit or to engage in other protected activities.


How about you? To what extent have you seen Anti-SLAPP special motions come into play in probate litigation?

Photo by Jerry Kiesewetter on Unsplash
Kevin Moore
Kevin Moore, Founder of Kevin J. Moore & Associates, is focused in the areas of estate planning, trusts and probate services with additional expertise in both domestic and international business transactions and tax planning and tax controversy representation for individuals and companies.