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On Behalf of | Apr 20, 2019 | Firm News

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Sarah Plott Key (Key) appeals from orders of the probate court (1) striking her petition to enforce a no contest clause in a trust under the “anti-SLAPP” statute (Code Civ. Proc., § 425.16)1 and (2) denying her motion to recover her attorney fees incurred in defending an earlier unsuccessful appeal filed by respondent Elizabeth Plott Tyler (Tyler).

Key and Tyler are sisters and, along with the third sister, respondent Jennifer Plott Potz (Potz), are beneficiaries of a family trust (Trust) that their parents first created in 1999. Tyler was the trustee. The Trust was purportedly amended in 2007 (2007 Amendment), substantially changing the beneficiaries’ rights and effectively disinheriting Key. Key filed a petition in 2011 (Invalidity Petition) seeking a ruling that the 2007 Amendment was a product of undue influence by Tyler. The probate court granted that petition, and the California Court of Appeal affirmed that ruling in a nonpublished opinion. (Key v. Tyler (June 27, 2016, mod. June 29, 2016, B258055) (Key v. Tyler I).)

Following remand, Key filed a petition to enforce the Trust’s no contest clause against Tyler (No Contest Petition), claiming that Tyler’s judicial defense of the invalid 2007 Amendment implicated that clause. Citing the same section of the Trust that contains the no contest clause, Key also sought an award of her attorney fees on appeal, which she claimed she incurred while resisting Tyler’s attack on the original Trust provisions.

Tyler responded with an anti-SLAPP motion. Tyler argued that Key’s No Contest Petition arose from Tyler’s protected litigation conduct under Code of Civil Procedure section 425.16, subdivision (e)(3), and that Key could not show a likelihood of success on her No Contest Petition for a variety of reasons, including that Key, not Tyler, had initiated the proceedings challenging the validity of the 2007 Amendment. Tyler also opposed Key’s request for attorney fees. The probate court granted Tyler’s anti-SLAPP motion and denied Key’s motion for attorney fees. The court rejected Key’s argument that the anti-SLAPP statute does not apply to petitions to enforce no contest provisions in probate court. The court also found that Key failed to show a probability of success on her No Contest Petition because Tyler’s defense against the Invalidity Petition that Key filed was not an enforceable “direct contest” of the Trust. (Prob. Code, § 21311.)2 With respect to the request for attorney fees, the court ruled that Key had failed to identify any statutory or equitable basis for the request.

The California Court of Appeal reversed both orders. They agreed with the probate court (and with a recent decision by Division Five of this district) that the anti-SLAPP statute applies to a petition such as Key’s seeking to enforce a no contest clause. However, we conclude that Key adequately demonstrated a likelihood of success under the second step of the anti-SLAPP procedure. Tyler’s judicial defense of the 2007 Amendment that she procured through undue influence meets the Trust’s definition of a contest that triggered the no contest clause. And, under sections 21310 and 21311, that  clause is enforceable against Tyler because the pleadings that Tyler filed defending the 2007 Amendment constituted a “direct contest” of the Trust provisions that the amendment purported to alter. (§ 21310, subd. (b)(5).) Key also provided sufficient evidence that Tyler lacked probable cause to defend the 2007 Amendment. (§ 21311, subd. (a)(1).)

The findings of the probate court concerning Tyler’s undue influence, which this court affirmed, provide a sufficient basis to conclude that Key has shown a probability of success on her No Contest Petition. The same section of the Trust that contains the no contest clause also provides that expenses to resist any “contest” or “attack” on a Trust provision shall be paid from the Trust estate. The California Court of Appeal concluded that this section provides Key with the contractual right to seek reimbursement of her attorney fees incurred in resisting Tyler’s appeal of the probate court’s ruling invalidating the 2007 Amendment. The California Court of Appeal therefore reversed the probate court’s rulings and remanded for the court to determine Key’s reasonable attorney fees and for further proceedings on Key’s No Contest Petition.

See Key v. Tyler.

If you are faced with California’s Anti-SLAPP issues, you need a highly skilled and tenacious attorney as your advocate!  Contact the Law Office of Robert Rodriguez!

Robert Rodriguez has prosecuted and defended California’s Anti-SLAPP law Section 425.16 of the Code of Civil Procedure, et seq. in the State of California courts.  Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights  discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.