Friday, October 6, 2017
Page 3
Court of Appeal:
Anti-SLAPP Statute Applies to Invocation of No-Contest Proviso
By a MetNews Staff Writer
The position that a petition to enforce a “no-contest” clause should be exempted from the reach of the anti-SLAPP statute is “not unreasonable,” the Court of Appeal for this district said yesterday, “but it ultimately fails.”
“Although we appreciate the strength of the argument in favor of exemption,” Acting Presiding Justice Sandy Kriegler of Div. Five wrote, “the plain language of the anti-SLAPP statute applies to a petition to enforce a no contest clause.”
The first prong of the statute—petitioning activity—is met, he said. There was, however, a reversal of an order granting an anti-SLAPP motion because the opponent of the motion was able to establish a probability of succeeding on the merits, Krieger declared.
The controversy stems from the action of the successor trustee under the testamentary trust of Allyne Urick—her daughter, Dana Urick—in petitioning for a reformation of the trust following her mother’s death. Dana Urick sought to eliminate her brother—Willis E. Urick III, former director of the Jonathan Club—as a beneficiary, based on a desire expressed by the decedent in a hand-written note.
Petition for Instructions
The son filed a petition for instructions querying whether the petition to reform the trust constituted a violation of the no-contest proviso. Los Angeles Superior Court Judge Leslie Green granted the daughter’s anti-SLAPP motion, and the son appealed.
In yesterday’s opinion, Krieger expressed sympathy toward the view that an anti-SLAPP motion should not be available in the present context, but that that under the statute, Code of Civil Procedure §425.16, it is. He wrote:
“Willis contends applying the anti-SLAPP statute in proceedings to enforce no contest clauses encourages litigation and discord between beneficiaries and increases litigation costs, contrary to the policies behind the no contest provisions and the intent of testators. Willis also notes that specific rules unique to the Probate Code should control over general provisions of the Code of Civil Procedure. …
“We conclude that although the policies underlying the no contest provisions have been carefully balanced by the Legislature and the anti-SLAPP procedures may impede some of those goals, including increasing litigation costs and potential delay, no provision of the Probate Code has been shown to be inconsistent with the anti-SLAPP provisions. The language of the anti-SLAPP statute is clear and unambiguous, and it has been applied to other probate court petitions.”
Probability of Success
With respect to the merits, Kriegler recited Willis Urick’s position that the filing of the petition to reform the trust breached the no-contest provision.
“This is correct,” he remarked.
Dana Urick, in claiming the language of the trust did not conform to her mother’s actual wishes and that her brother should be eliminated as a beneficiary, was seeking to increase her own take, and that of her son, and was acting in the role of a beneficiary and not trustee, Kriegler said.
“Willis presented evidence with the minimal merit necessary to overcome the anti-SLAPP motion,” he wrote.
The opinion reverses a $24,795.00 attorney fee award to Dana Urick.
The case is Urick v. Urick, 2017 S.O.S. 4966.
Attorneys on appeal were Michael A. Angel and Cliff Melnick of Meserve, Mumper & Hughes, for Willis Urick, and Robert N. Sacks and Eunice Y. Lim of Sacks, Glazier, Franklin & Lodise, for Dana Urick.
Angel commented:
“We are pleased that the court accepted our arguments, and we are looking forward to litigating the merits of this case. The court recognized the tension that exists between the anti-SLAPP statute and the public policy behind no contest clauses, and we hope the legislature will grapple with this issue sooner, rather then later.”
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