Filed 6/23/20 Diller v. Safier CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

RONALD DILLER,

Objector and Appellant,

v.

JACLYN SAFIER,

Petitioner and Respondent.

A157498

(San Mateo County Super.

Ct. No. 18-PRO-01127)

Ronald Diller (Ron), son of decedents Helen and Sanford Diller, appeals from the trial court’s April 5, 2019 order: (1) denying his special motion to strike his sister Jaclyn Safier’s (Jackie) “Petition for Instructions,” (Petition) which she filed as successor trustee to one of their parents’ sub-trusts; and (2) granting Jackie’s Petition. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Helen and Sanford were married in 1951 and had three children—Ron, Jackie, and a third child, Bradley, who is not a party to this action. Helen and Sanford built a successful real estate and property management company and donated or committed over one billion dollars to various philanthropic causes and charitable organizations.

In 1981, Helen and Sanford created the DNS Trust delineating how they wished to dispose of their assets—all of which was community property—after their deaths. The DNS Trust provided that upon the death of the first spouse: (1) the deceased spouse’s share of the estate would be placed in several irrevocable sub-trusts; and (2) the surviving spouse’s share of the estate would be placed in a survivor’s trust, which would presumably set forth the surviving spouse’s testamentary wishes and would remain revocable during that spouse’s lifetime.

Helen died on January 9, 2015. According to Ron, Helen stated on many occasions that she intended to leave, and was leaving, a “ ‘legacy’ ” for her family, meaning some or all of her share of the estate would pass to her children and grandchildren. After Helen died, Ron did not seek any copies of trust documents and did not expect any immediate inheritance because he understood that Helen’s share of the estate was going to be placed in irrevocable sub-trusts and distributed upon the death of the surviving spouse, Sanford.

Sanford died on February 2, 2018. Shortly thereafter, Sanford’s long-time estate planning attorney, Thomas Richardson of the law firm of Arnold & Porter Kaye Scholer LLP (Arnold Porter), informed Ron that Ron was the beneficiary of a $3 million trust ($3 Million Trust), that Richardson was the trustee of that trust, and that the funds would be distributed to Ron for “medical emergencies and financial exigencies only,” as determined by Richardson as trustee. Richardson said he would send Ron “a complete copy of the Trust agreement” by April 1, 2018. However, according to Ron, Richardson did not send a complete copy of any trust; rather, he sent only a partial copy of Sanford’s survivor trust (the Survivor’s Trust), with “key pages . . . missing.” On April 3, Richardson sent a Notice of Trustee to Ron informing him that Richardson and Arnold Porter had been retained as legal counsel for Jackie in her capacity as trustee of the Survivor’s Trust.

Ron asked Richardson for copies of his parents’ trust documents, including the DNS Trust, which he believed set forth his mother’s testamentary intent to leave a legacy for her family. Richardson denied the request, stating Ron was not entitled to a copy of “any additional documentation” including the DNS Trust because “[t]he only trust . . . of which you are a beneficiary is the Survivor’s Trust.” Richardson warned that the Survivor’s Trust contains a no-contest clause and cautioned him “against taking any actions that might jeopardize your and your children’s inheritance under the trust.” When Ron requested documents through his own counsel, Arnold Porter responded in a similar way, denying the request on the basis that Ron was only a beneficiary of the Survivor’s Trust and warning counsel about the no-contest clause.

On July 31, 2018, Ron filed a civil complaint in San Francisco Superior Court against Jackie and certain foundations to the extent the foundations were “possible recipient[s]” of assets otherwise due and owing to Ron. The complaint alleged Jackie interfered with Helen’s intent to leave some or all of her one-half share of the estate to her children and grandchildren by the following wrongful and fraudulent acts: (1) concealing vital information regarding their parents’ trust; (2) preventing Helen from executing new documents that were consistent with her testamentary wishes; (3) maliciously terminating payments for Ron’s autistic daughter within two weeks of their father’s death and telling Ron that any further distributions for that daughter would be at her (Jackie’s) discretion as trustee; (4) signing, without authority, an amendment to the Survivor’s Trust on behalf of her father the day he died, giving a “pay[] off” of $2.5 million and a Porsche to Helen’s caretaker “in an effort to silence her” because the caretaker was privy to the wrongdoing that had occurred; and (5) along with her counsel threatening Ron and their sibling Bradley by saying they (Ron and Bradley) and all of their children would be at risk of being disinherited based on the no-contest clause if they “collaborat[ed] with or even discuss[ed] any possible claims” with each other.

On October 12, 2018, Jackie filed her Petition in the San Mateo Superior Court, which sought instructions from the trial court on how to proceed in her capacity as “successor trustee of . . . the Survivor’s Trust.” The Petition provided a brief history of her parents’ estate, summarized Ron’s complaint, denied the allegations in Ron’s complaint, and stated she “recognizes” that “to the extent” Ron’s complaint contests or opposes the validity of the DNS Trust or the Survivor’s Trust, it violates the no-contest clauses contained in those trusts. She asked the court to instruct her as to what action she should take in light of Ron’s complaint, specifically, whether she should: “a. Take any action with regard to Ronald Diller, or any other beneficiary if during the course of the Ronald Diller Action others are identified as violating [a no-contest clause in either the DNS Trust or the Survivor’s Trust] . . . including (i) suspending distributions during the pendency of the Ronald Diller Action, or (i[i]) making distributions only pursuant to a refunding agreement; or [¶] b. Continue to administer the Survivor’s Trust in accordance with its terms until conclusion of the Ronald Diller Action.” She stated she planned to seek further instruction from the court “at the conclusion of the Ronald Diller Action” “concerning whether any beneficiaries should be found in violation of the forfeiture provisions contained in [any no-contest clauses]; the proper application of those provisions; and whether the Trustee should seek legal remedies to suspend distributions to, and recover prior distributions from, any such beneficiaries.”

The same day, October 12, 2018, Jackie filed a motion in the San Francisco Superior Court to transfer Ron’s civil action to San Mateo County, where the principle place of the trust administration was located. The motion to transfer was granted.

On December 11, 2018, Ron filed an anti-SLAPP motion in the San Mateo Superior Court seeking to strike Jackie’s Petition on the ground it arose from his complaint against her. He asserted Jackie’s Petition was actually a “Disinheritance Petition” in disguise because Jackie was not simply seeking guidance from the trial court, but was instead trying to get him disinherited on the basis that he violated a no-contest clause. Ron argued his anti-SLAPP motion should be granted because Jackie had failed to show a probability of prevailing on her “Disinheritance Petition.”

Jackie opposed the anti-SLAPP motion, stating Ron was “disingenuously refram[ing] [her] petition as seeking to disinherit him” when she was not actually seeking such an order. She argued the Petition “does not implicate the anti-SLAPP statute” because it “merely seeks the Court’s guidance about how to properly exercise the Trustee’s fiduciary duties” and “does not threaten any harm to [Ron] or his children.” However, in arguing she had shown a probability of prevailing on the Petition, she proceeded to argue the merits of whether Ron had violated no-contest clauses contained in the DNS Trust and Survivor’s Trust.

In his reply brief, Ron argued that he did not violate any no-contest clause. Ron also stated that various trust documents Jackie attached to her opposition—some of which he was seeing for the first time because Jackie and Richardson had refused to provide them to him—contained “vital information” showing Helen had in fact left him a “cash legacy” from her share of the estate and that funds were fraudulently funneled from certain sub-trusts, which should have become irrevocable upon Helen’s death, to the Survivor’s Trust after her death. He also asserted Jackie lacked standing to bring the Petition because she was not trustee of his $3 Million Trust.

On April 5, 2019, after further briefing and a hearing, the trial court entered an order denying Ron’s anti-SLAPP motion, stating as relevant to this appeal: “[Ron’s] protected activity was not affected by [Jackie’s Petition] and [there is a] strong likelihood that the Trustee would prevail on the [Petition].” In the same order, the court also ruled, “Consistent with the above, the Trustee’s [Petition] is GRANTED.” “The Trustee shall delay any petition to enforce any no-contest clause until the close of pleadings in [Ron’s action].” Ron timely appeals from this order.

DISCUSSION

I. Anti-SLAPP Motion

The anti-SLAPP statute, Code of Civil Procedure section 425.16 subdivision (b)(1), provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” As used in this section, an “ ‘act in furtherance of a person’s right of petition or free speech . . . in connection with a public issue’ ” includes “any written or oral statement or writing made before a . . . judicial proceeding” or “made in connection with an issue under consideration or review by a . . . judicial body.” (§ 425.16, subd. (e); see also Birkner v. Lam (2007) 156 Cal.App.4th 275, 281 [the constitutional right to petition includes the act of filing litigation]; Navellier v. Sletten (2002) 29 Cal.4th 82, 90 [same].) The anti-SLAPP statute “shall be construed broadly.” (§ 425.16, subd. (a); Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1119 [the court “should interpret the First Amendment and Section 425.16 in a manner ‘favorable to the exercise of freedom of speech’ ”].)

“Resolution of an anti-SLAPP motion involves two steps.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) In the first step, the moving party must show the claim at issue “arises from” the moving party’s free speech or petitioning activity protected by section 425.16. (Ibid.) In the second step, the burden shifts to the opposing party to demonstrate a probability of prevailing on the merits of the claim. (Ibid.) We review an order granting or denying an anti-SLAPP motion de novo. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067.) “ ‘We exercise our independent judgment to determine not only whether the anti-SLAPP statute applies, but whether the complainant has established a reasonable probability of prevailing on the merits. [Citation.]’ [Citation.]” (Greco v. Greco (2016) 2 Cal.App.5th 810, 820.)

Ron contends the trial court erred in denying his anti-SLAPP motion because both prongs were met, i.e., (1) Jackie’s Petition “arose from” the filing of his complaint, and (2) Jackie failed to show a probability of prevailing on the Petition. We conclude that, while Jackie’s Petition arose from the filing of Ron’s complaint, the anti-SLAPP motion fails because Jackie demonstrated a probability of prevailing on the Petition.

As to the first prong, “the critical consideration is whether the [claim] is based on [the moving party’s] protected free speech or petitioning activity.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.) “[T]he mere fact that an action was filed after protected activity took place” or “that a cause of action arguably may have been ‘triggered’ by protected activity” is insufficient. (Ibid.) The moving party, however, does not have to prove the plaintiff’s subjective intent and does not need to show the claim actually had a chilling effect on the exercise of protected rights. (Ibid.) “In deciding whether the initial ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ (§ 425.16, subd. (b).)” (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.)

Here, the record shows Jackie filed the Petition directly in response to Ron’s act of filing a complaint. She repeatedly referred to his complaint in the Petition and asserted that “to the extent” Ron’s complaint was a contest filed without probable cause, Ron was in violation of no-contest clauses contained in their parents’ trust documents. She sought instructions from the court on how to proceed as trustee in light of Ron’s complaint, asked what she should do in the event any beneficiaries were found to be in violation of the no-contest clause, and stated she would seek further instructions regarding any violations of the no-contest clauses and their effect on her duties as trustee “at the conclusion of the Ronald Diller Action.” Thus, Jackie’s Petition was based on, triggered by, and arose from Ron’s act of filing a complaint, and the burden shifted to Jackie to show a probability of prevailing on the Petition. (See Urick v. Urick (2017) 15 Cal.App.5th 1182, 1189, 1192 (Urick) [holding anti-SLAPP motion applies to petitions to enforce no-contest clauses because they “arise from” the protected activity of filing a contest pleading]; Key v. Tyler (2019) 34 Cal.App.5th 505, 510 [same].)

The second prong has been compared to a “summary-judgment-like procedure.” (Taus v. Loftus (2007) 40 Cal.4th 683, 714.) “The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ [Citation.]” (Baral v. Schnitt, supra, 1 Cal.5th at pp. 384–385.)

Here, Jackie’s Petition, fully entitled “Petition for Instructions,” sought “instructions” on how she should proceed as trustee of the Survivor’s Trust. Probate Code section 17200 subdivision (b)(6) allows a trustee or beneficiary of a trust to petition the court for instructions “concerning the internal affairs of the trust.” Because Jackie properly filed a petition under this section, and the only relief she requested was for the court to instruct her on how to administer the trust, she had a probability of prevailing, that is, of successfully obtaining some instructions from the court on how to proceed in her capacity as trustee in light of the filing of Ron’s complaint.

Ron argues Jackie failed to show a probability of prevailing because Richardson, not Jackie, is the trustee of his $3 Million Trust, and Jackie therefore lacked standing to ask the court for instructions on how or whether to distribute any funds from that trust to him. The record shows, however, that Jackie brought the Petition in her capacity as trustee of the Survivor’s Trust, under which Ron’s trust was created. She did not limit her request for instructions to how or whether to distribute funds to Ron during the pendency of his complaint, but rather asked, more generally and broadly, whether she should “[t]ake any action” as to any beneficiary in light of Ron’s complaint. Because Ron’s complaint had the potential to affect other Survivor’s Trust beneficiaries of whom Jackie was trustee, Jackie had standing to ask the court for instructions regarding how she should administer that trust.

Ron alternatively claims, as he did below, that Jackie’s Petition was actually a “Disinheritance Petition” and that she therefore, in satisfying the second prong, had the burden of showing a probability of successfully disinheriting him by way of a no-contest claim. We can see how Ron came to believe that Jackie was trying to disinherit him because Jackie, while stating she was only seeking instructions (and that she was not seeking a ruling on any no-contest claim) nevertheless proceeded to argue why she believed Ron had violated the no-contest clauses. Ron, in response, argued he did not violate any no-contest clause, and both parties began prematurely and extensively arguing about not only the merits of a potential no-contest claim, but also about the merits of the allegations of Ron’s complaint—issues that were not before the court at that time.

Nevertheless, Jackie did clarify in her opposition papers below, and reiterates on appeal, that she was not seeking to disinherit Ron and was not asking the court to rule whether he had violated the no-contest clause. When Ron’s counsel asserted at the hearing on the anti-SLAPP motion and Petition that Jackie was trying to disinherit him, Jackie’s counsel responded that Jackie was “not seeking determination of whether there has been a violation of the no contest clause here.” He explained she was “simply doing what any normal trustee would do” by asking for instructions on what, if anything, she needed to do in light of Ron’s complaint. Given the narrow scope of Jackie’s Petition and the relief actually requested in the Petition—which did not include a request for adjudication of any no-contest claim—we conclude she met her minimal burden of showing a probability of prevailing, that is, of obtaining some instructions from the trial court. Accordingly, the court properly denied Ron’s anti-SLAPP motion.

II. Petition for Instructions

As noted, Probate Code section 17200 allows a trustee or beneficiary of a trust to petition the trial court “concerning the internal affairs of the trust,” which includes “[i]nstructing the trustee.” (Prob. Code, § 17200, subd. (b)(6).) The court has wide discretion to make any order and take any action necessary or proper to dispose of matters presented by a petition under section 17200, and a reviewing court “may not disturb the exercise of [that discretion] . . . in the absence of a clear abuse thereof appearing in the record.” (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984–985; Prob. Code, § 17206; Esslinger v. Cummins (2006) 144 Cal.App.4th 517, 528–529.)

Ron contends the trial court erred by immediately proceeding to rule on the merits of Jackie’s Petition after denying his anti-SLAPP motion without giving him the opportunity “to further object, to conduct discovery, and to present evidence [regarding the Petition] at an evidentiary hearing.” He asserts that, if given the opportunity, he would have been able to present additional evidence regarding “key factual disputes,” i.e., whether Jackie had standing to bring the Petition, and whether Ron’s complaint constituted a contest in violation of a no-contest clause. Jackie responds that Ron forfeited the issue by not seeking discovery or requesting an evidentiary hearing even though he had ample opportunity to do so in the five or six months between the time she filed the Petition and the court’s order granting it. She also argues he failed to show prejudice because the only instruction the court gave in granting the Petition was that she must wait until the conclusion of Ron’s action to attempt to enforce any no-contest clause—a ruling that does not prejudice Ron.

Even assuming Ron did not forfeit the issue, we conclude Ron’s contention fails because he cannot show he was prejudiced by the trial court’s act of ruling on Jackie’s Petition immediately after denying his anti-SLAPP motion. As noted, the only instruction the court gave was that Jackie must wait until the conclusion of Ron’s action to seek to enforce any no-contest clause. The court did not address the merits of any no-contest claim, did not determine whether Ron’s complaint was a contest, and did not authorize Jackie to withhold distributions to any beneficiary pending Ron’s complaint, or do anything differently than what she would have done absent Ron’s complaint. The court also did not find Jackie has standing or authority to make any determinations regarding Ron’s $3 Million Trust; rather, the record shows the court’s order is limited to instructing Jackie more generally in her capacity as trustee of the Survivor’s Trust, not specifically as to Ron’s $3 Million Trust (of which Jackie apparently does not dispute she is not trustee). Because the court made no findings adversary to Ron in granting the Petition, any further opportunity to conduct discovery or request and participate in an evidentiary hearing would not have produced a more favorable outcome for him.

DISPOSITION

The trial court’s April 5, 2019 order denying Ron’s anti-SLAPP motion and granting Jackie’s Petition is affirmed. The parties shall bear their own costs on appeal.

_________________________

Petrou, J.

WE CONCUR:

_________________________

Fujisaki, Acting P.J.

_________________________

Jackson, J.

A157498