The Second District denies an attorney’s Special Motion to Strike under California’s Anti-Strategic Lawsuit Against Public Participation statute where the complaint alleged the attorney engaged in intentional or negligent breach of trust in the estate planning context. Drafting a document related to a private transaction that is not connected to a judicial proceeding or an issue of public interest is not an act in furtherance of a right of petition or free speech.
Evah Moore executed a trust in which he named his son, George, trustee, and appointed his grandson, Kenton, successor trustee. The trust was to terminate five years after Evah’s death when it would be divided equally between George and his sister, Susan. If either George or Susan died prior to the termination of the trust, their share of the trust assets was to pass to their issue. After Evah died, but before the five-year period expired, George was diagnosed with terminal cancer. He hired Nancy Shaw to draft an agreement in which George and Susan agreed to distribute the trust assets before the five-year period. Once George obtained distribution of the trust assets, he drew up an estate plan in which he disinherited his children from his first marriage, including Kenton.
Kenton sued Shaw and others for intentional and negligent participation in a breach of trust. Shaw responded to the complaint with a Special Motion to Strike under California’s Anti-Strategic Lawsuit Against Public Participation statute, C.C.P. §425.16. These motions are designed to test complaints that arise from conduct in furtherance of a right to petition or free speech in connection with a public issue. If the moving party establishes the complaint arises from constitutionally protected conduct, the opposing party must establish a probability of prevailing on the merits. The trial court refused to grant the motion because it did not believe the conduct alleged in the complaint was a “First Amendment issue.”
The Court of Appeal agreed Kenton’s complaint did not arise from Shaw’s exercise of a right to petition or free speech under any definition of the term contained in the statute. Kenton’s complaint arose from Shaw’s drafting of an agreement to terminate the Trust. There was no litigation pending at the time Shaw drafted the agreement. Indeed, three years passed before there was any litigation regarding the agreement. Because the conduct Shaw engaged in related to a private transaction that was not connected to any public issue or judicial proceeding, she failed to meet her burden as a moving party.
The court found Shaw’s anti-SLAPP motion frivolous and sanctioned her. It opined no reasonable attorney would have believed an anti-SLAPP motion was appropriate given the facts. Finally, the court expressed alarm at the increased use of SLAPP motions, which burden the court and opposing parties.
Comment: The Moore decision is further warning that anti-SLAPP motions should not be filed unless the complaint truly arises from a party’s exercise of a right to petition or free speech. Certainly, anti-SLAPP motions should not be used to attack complaints arising from an attorney’s work in a private transactional matter.