Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. PTR-07-289873
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
The death of Benusto Barnachea Napenas (Benusto) generated litigation involving the validity of certain transfers of his property to a trust. Carlito Quismorio and Juana Napenas (plaintiffs), who would benefit if such property were to pass by intestate succession, filed a petition seeking to invalidate the transfers and the underlying trust. Zosima Bumatay Mulato Dizon (Dizon), acting as trustee, filed a special motion to strike plaintiffs’ petition pursuant to the anti-SLAPP (strategic lawsuit against public participation) statute, Code of Civil Procedure section 425.16. Dizon seeks review of the probate court’s order denying her special motion to strike. We affirm the order.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
I. FACTUAL AND PROCEDURAL BACKGROUND
We consider the facts as set forth in the pleadings and supporting and opposing affidavits. (§ 425.16, subd. (b)(2).)
On April 3, 2007, Dizon filed a verified petition seeking to confirm title to trust property, pursuant to Probate Code sections 850 and 17200.1 (Dizon’s Petition). She claimed to be the sole trustee of the Benusto Barnachea Napenas Living Trust, dated January 20, 2006 (Trust). Dizon alleged that Benusto “was a first cousin to [her] father” and that she and Benusto had a close relationship.
Dizon also alleged that, in the summer of 2004, Benusto was encouraged to prepare an estate plan. Accordingly, “[i]n December 2005, [Benusto] told [Dizon]’s sister Yolanda to find an attorney who would prepare his estate plan. . . . After making preliminary arrangements, [Dizon] and her sister Yolanda took [Benusto] to the Law Offices [of Ashwani K. Bhakhri] on January 20, 2006, where [Benusto]’s estate plan was prepared by attorney Robert J. Menache.” Dizon’s Petition alleges that Mr. Menache prepared a living trust, a power of attorney, an advanced health care directive, and a pour over will for Benusto. The documents named Dizon as successor trustee, executor under the pour over will, and agent under powers of attorney for asset management and health care.
Benusto named himself “Trustee.” However, the Trust provides: “In the event that the Trustee is adjudicated to be incompetent or in the event that the Trustee is not adjudicated incompetent, but by reason of illness or mental or physical disability is, in the opinion of his medical provider, unable to properly handle his/her own affairs, then and in that event the settlor names [Dizon] as Trustee . . . .”
According to the petition, “[o]n June 7, 2006, [Benusto] was taken to Seaton emergency, and subsequently transferred to intensive care. The prognosis was critical because [Benusto] was suffering from major organ failure and [was] placed on kidney dialysis.” Dizon assumed the duties of trustee and, under the authority conferred by the executed power of attorney, commenced transferring all of Benusto’s assets into the Trust, as instructed by Mr. Menache. ~(2 AA 437-438, 459-462, 475-504)~
Dizon also alleged that “[o]n July 12, 2006, letters of temporary conservatorship were issued to [Dizon] as temporary conservator of [Benusto’s] conservatorship estate” and that, “acting as trustee of the [T]rust and conservator of [Benusto’s] conservatorship[, she] executed a trust transfer deed to [certain real property] from herself [as conservator] to herself as trustee of [the T]rust.” Dizon also alleged that she transferred Benusto’s assets in various bank accounts into the Trust. On July 18, 2006, Benusto died. Dizon’s Petition sought an order confirming the Trust’s title to all real and personal property listed on “Schedule A” of the Trust. The Trust’s beneficiaries are Dizon and her two sisters.
On May 7, 2007, Carlito Quismorio, who claimed to be Benusto’s son, filed an opposition to Dizon’s Petition. On June 8, 2007, Carlito Quismorio and Juana Napenas, who claimed to be Benusto’s sister, also filed a petition to invalidate decedent’s purported will, general power of attorney, and trust instrument. On September 20, 2007, plaintiffs filed their verified amended petition to invalidate decedent’s general power of attorney and trust instrument and to invalidate the unilateral transfer of estate property to trust (Petition to Invalidate). Plaintiffs’ Petition to Invalidate urged the court “to invalidate the General Power of Attorney purportedly given by Benusto to [Dizon] on 1/20/2006 and to also invalidate the Trust instrument purportedly signed by Benusto on 1/20/2006–and to also invalidate the unilateral transfer of estate property to the [T]rust by [Dizon] as such transfer is based on an invalid or fraudulent General Power of Attorney.” The Petition to Invalidate asked the court “to order sanctions and penalties against [Dizon] and [her attorney] for presenting fraudulent documents to the court and attempting to commit a fraud on the court . . . .” Plaintiffs charged that the pour over will “was fraudulently fabricated” and that “the other documents [Dizon and her attorney] submitted may also be likely fraudulent or fraudulently induced.”
In support of their claims, plaintiffs claimed “the signature of Benusto on the so called General Power of Attorney is very different from the Trust instrument” and that “there is no indication in the notarial [sic] book or record of the notary . . . that Benusto signed a General Power of Attorney before her . . . .” Plaintiffs’ Petition to Invalidate concluded: “If the court upon examination of the documents submitted by [Dizon] finds that frauds were committed upon the court and other claimants, we then respectfully request that the court invalidate the General Power of Attorney, and the Trust instrument and also invalidate the unilateral transfer of Benusto’s estate property to the [T]rust and declare Carlito Quismorio and Juana Napenas as the proper intestate beneficiaries . . . .” Finally, the Petition to Invalidate urged the court “to determine which party or parties committed [fraud on the court] and impose proper sanctions as the court sees fit.”
Dizon moved to strike plaintiffs’ Petition to Invalidate, arguing in relevant part that it was a SLAPP suit under section 425.16. The court denied Dizon’s anti-SLAPP motion in an order stating simply that the motion was denied. Dizon filed a timely notice of appeal.
Dizon also moved to strike the petition for lack of verification and moved to strike references to the pour over will under section 436. The court denied the former motion and granted the latter motion, in part. Only the court’s ruling on the special motion to strike was immediately appealable. (§§ 425.16, subd. (j), 904.1, subd. (a)(13).)
II. DISCUSSION
A. The Anti-SLAPP Statute
Under section 425.16, subdivision (b)(1) “[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.”
Section 425.16, subdivision (e) provides: “As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” In order to protect the constitutional rights of petition and free speech, the statute is to be broadly construed. (§ 425.16, subd. (a).)
“[S]ection 425.16 requires that a court engage in a two-step process when determining whether a defendant’s anti-SLAPP motion should be granted. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one ‘arising from’ protected activity. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim. [Citation.]” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76 (City of Cotati).) “The appellate court independently reviews whether section 425.16 applies and whether the plaintiff has shown a probability of prevailing. [Citation.]” (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1283.)
B. The “Arising From” Requirement
Assuming that plaintiffs’ Petition to Invalidate states a “cause of action against” Dizon as trustee, we proceed to determine whether it is one “arising from” her protected activity. (§ 425.16, subd. (b)(1).) Dizon maintains the probate court should have granted the special motion to strike since the gravamen of plaintiffs’ Petition to Invalidate is that Dizon submitted Benusto’s estate plan to the probate court and petitioned to confirm the Trust’s title to the disputed property, which were acts in furtherance of Dizon’s right to free speech. We conclude that the probate court properly denied the special motion to strike because plaintiffs’ Petition to Invalidate does not arise out of Dizon’s protected activity.
In deciding whether the “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)(2).) “The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92.)
We begin by noting that “ ‘ “[t]he constitutional right to petition . . . includes the basic act of filing litigation or otherwise seeking administrative action.” ’ [Citations.]” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.) Thus, it is beyond dispute that plaintiffs’ Petition to Invalidate alleges some activity that is protected by section 425.16. Furthermore, plaintiffs’ Petition to Invalidate was filed only months after Dizon’s Petition was filed. “But the mere fact an action was filed after protected activity took place does not mean it arose from that activity.” (City of Cotati, supra, 29 Cal.4th at pp. 76-77.) Nor does the fact “[t]hat a cause of action arguably may have been triggered by protected activity” necessarily mean that it arises from such activity. (Id. at p. 78.) Rather, “[t]he trial court must instead focus on the substance of the plaintiff’s lawsuit in analyzing the first prong of a special motion to strike. [Citations.]” (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 669-670 (Peregrine Funding).) “In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. [Citations.]” (City of Cotati, supra, 29 Cal.4th at p. 78.)
Dizon makes much of plaintiffs’ references to Dizon’s submission of allegedly fraudulent documents to the court and plaintiffs’ request that the probate court sanction such “fraud upon the court.” However, plaintiffs also allege that the underlying documents themselves were not signed by Benusto, or are otherwise invalid, and that the transfer of property itself was invalid.
Many of these allegations were ordered stricken by the court under section 436.
“Published appellate court cases have concluded that where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is ‘merely incidental’ to the unprotected conduct. [Citations.]” (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 103; accord Salma v. Capon, supra, 161 Cal.App.4th at p. 1287; Peregrine Funding, supra, 133 Cal.App.4th at p. 672; Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1245; Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308 [“a plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one ‘cause of action’ ”].) “ ‘[I]f the allegations of protected activity are only incidental to a cause of action based essentially on nonprotected activity, the mere mention of the protected activity does not subject the cause of action to an anti-SLAPP motion. [Citation.]’ ” (Peregrine Funding, supra, 133 Cal.App.4th at p. 672; Scott v. Metabolife Internat., Inc., supra, 115 Cal.App.4th at p. 414.)
Some cases state that mixed causes of action are subject to a special motion to strike under section 425.16 if the gravamen or principal thrust of the claim is protected activity. (California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1036-1037; Freeman v. Schack (2007) 154 Cal.App.4th 719, 727; Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 802; Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, 615; Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519-520; Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 416-417; Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) We agree with the Peregrine Funding court that this formulation of the test originated in language in a Supreme Court opinion that is not related to mixed causes of action. (Peregrine Funding, supra, 133 Cal.App.4th at pp. 672-673 & fn. 9.) Accordingly, we do not adopt the formulation.
Our independent review leads us to conclude that the controversy underlying plaintiffs’ Petition to Invalidate is the alleged forgery of documents and the purportedly invalid transfer of property. We understand many of plaintiffs’ “allegations” to be better characterized as inartful evidentiary argument. For example, plaintiffs allege: “Given the fact that [Dizon] or whoever was or were desperate enough to submit a fraudulent copy of a purported will to gain access to the assets of the late Benusto–it can be logically inferred that the contents of the General Power of Attorney . . . may probably also have been fraudulently manufactured.” Plaintiffs make similar allegations with respect to the Trust. Although plaintiffs’ Petition to Invalidate is hardly a model of clarity, the real question posed appears to be: “did [Benusto] really sign [the trust instrument?]–or [,] if he did–was he coerced into signing it without knowing what he was signing?” These questions probe conduct that occurred long before Dizon’s protected speech or petitioning activity.
These “evidentiary allegations” were ordered stricken by the court under section 436. Thus, Dizon successfully availed herself of the “other options to eliminate theories within a cause of action that lack merit or cannot be proven.” (Mann v. Quality Old Time Service, Inc., supra, 120 Cal.App.4th at p. 106 [“[A] defendant can file a motion to strike a particular claim under section 436 concurrently with its anti-SLAPP motion, or it can move for summary adjudication of any distinct claim within a cause of action”].)
Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308 is analogous. There, the rent control board alleged that landlord defendants filed deceptive documents with the board after having created false tenancies to demonstrate compliance with a rent control ordinance. (See id. at pp. 1314-1315.) The board sought a judicial determination of the maximum allowable rent under the ordinance and sought an injunction prohibiting defendants from charging more than the maximum allowable rent. (Id. at p. 1315.) The defendants filed a motion to strike under section 425.16, arguing that the board’s causes of action arose from protected activity—defendants’ presentation of such documents to a public administrative agency. (Id. at pp. 1315-1316, 1318.) The reviewing court disagreed, concluding that the board’s suit was based on allegations that defendants charged illegal rent and was not brought to remedy the defendants’ filing of deceptive documents with the board. (Id. at p. 1318.)
Similarly, here, plaintiffs seek to remedy injury suffered as a result of the allegedly invalid property transfers. Dizon’s alleged conduct is not protected as an act to further free speech or the right to petition simply because she ultimately utilized court processes to further her purported aim to wrongfully deprive plaintiffs of property that otherwise would have passed to them by intestate succession. (See City of Cotati, supra, 29 Cal.4th at pp. 79-81; Santa Monica Rent Control Bd. v. Pearl Street, LLC, supra, 109 Cal.App.4th at pp. 1317-1318; Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1391, 1398-1399.) Because the allegations of protected conduct are only incidental to the principal allegations of unprotected conduct, we conclude that plaintiffs’ Petition to Invalidate does not arise from any act of Dizon in furtherance of her right of petition or free speech. Accordingly, Dizon did not shift the burden to plaintiffs to demonstrate the probability of prevailing on the merits and we need not consider arguments addressing that issue.
III. DISPOSITION
The order denying the special motion to strike is affirmed. Plaintiffs are to recover costs on appeal.
We concur. JONES, P.J., NEEDHAM, J.