Litigation Alert

• Publication year: 2019
• Author: By Jeremiah J. Moffit, Esq., Catherine M. Swafford, Esq.,

LITIGATION ALERT

By Jeremiah J. Moffit, Esq.,^* Catherine M. Swafford, Esq.,^*

Matthew R. Owens, Esq.,^* and Courtney A. Sorensen, Esq.^*

NO CONTEST CLAUSES MAY BE ENFORCED AGAINST BOTH CONTESTANTS AND RESPONDENTS IN A TRUST CONTEST, AND THE ANTI-SLAPP STATUTE APPLIES TO PETITIONS TO ENFORCE A NO CONTEST CLAUSE

Key v. Tyler (2019) 34 Cal.App.5th 505

The Second District Court of Appeal held that no contest clauses may be enforced against both contestants and respondents in a trust contest, depending on the circumstances, and the anti-SLAPP statute applies to petitions to enforce a no contest clause. The litigation privilege may not be used to defeat an anti-SLAPP motion.

Three sisters were equal beneficiaries under their mother's trust until the mother amended the trust in 2007 in one sister's favor. One of the sisters contested the 2007 amendment on undue influence grounds and won, and the ruling was upheld on appeal. The contesting sister then filed a petition to enforce the trust's no contest clause against the benefiting sister and for attorney's fees based on a trust provision authorizing repayment from the trust for expenses incurred to defend against a trust contest.

The benefiting sister responded with an anti-SLAPP motion. In that motion she contended that the enforcement petition arose from protected litigation and that the contesting sister could not show a probability of prevailing for various reasons, including that the benefiting sister did not initiate the underlying trust contest. The court granted the anti-SLAPP motion because the defense of the underlying trust contest filed by the contesting sister was not a direct contest under the governing statute. The court denied the contesting sister's motion for attorney's fees because she did not identify a contractual or equitable basis for recovery. The contesting sister appealed.

The Court of Appeal reversed both orders and remanded. The trial court correctly ruled that the anti-SLAPP statute applied to the enforcement petition because the defense of the underlying trust contest was protected litigation, and no statutory exception applied. Even though the benefiting sister satisfied the anti-SLAPP statute's first prong and shifted the burden to the contesting sister to show probability of prevailing on the merits under its second prong, the contesting sister met her burden because of the prior judgment invalidating the 2007 amendment.

The definition of a "direct contest" in Probate Code sections 21310 and 21311 applies to responses and objections, not just petitions that initiate the trust contest. By defending against the contesting sister's trust contest, the benefiting sister effectively sought to revoke the gifting provision contained in the prior version of the trust, and therefore her actions constituted a direct contest, notwithstanding that she was the respondent. The litigation privilege did not shield the benefiting sister's actions because enforcing it would render the no contest clause statute inoperable in every case. The Probate Code's specific no contest statutes trump the Civil Code's more general litigation privilege statute. The contesting sister was also entitled to seek attorney's fees under contractual and equitable theories.

FOREIGN BIRTH CERTIFICATES OFFERED TO SHOW RELATIONSHIP TO A DECEDENT WILL BE EXCLUDED FROM EVIDENCE IF THE DOCUMENTS LACK PROPER ATTESTATION

Estate of Herzog (2019) 33 Cal.App.5th 894

The Fourth District Court of Appeal held two German birth certificates offered to establish relationships to a decedent were properly excluded from evidence due to lack of attestation.

After the decedent died intestate, her nephew was appointed administrator of her estate. A firm specializing in locating heirs held a power of attorney on behalf of the decedent's purported half-sister. The firm filed an heirship petition seeking an order that the purported half-sister was the decedent's sole heir. In support of its claim, the firm offered two German birth certificates—one for the decedent and one for the half-sister—purporting to show they shared the same father. The nephew contended the documents were not official German records and had no consular authentication or certification. The court excluded the birth certificates from evidence because no attested copies were presented. The birth certificates had rubber government stamps and, although signed, there was no attestation and no indication they were signed by public officers. Without the birth certificates, the firm could not meet its burden of proving that the decedent and the purported half-sister shared a parent. The court dismissed the heirship petition with prejudice. The firm appealed.

The Court of Appeal affirmed. Under both the California Evidence Code and the...