Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BP118029, Michael I. Levanas, Judge.
Greenberg Traurig, Eric V. Rowen, Scott D. Bertzyk, Karin L. Bohmholdt, and Nicholas Insogna for Plaintiffs and Appellants.
Holland & Knight, Bruce S. Ross, and Roger B. Coven; Pillsbury Winthrop Shaw Pittman, Michael J. Finnegan, and Nathan M. Spatz for Defendant and Respondent.
SUZUKAWA, J.
In this trust administration proceeding, two opposing parties petitioned for relief and then each moved to strike all or part of the other’s petition under Code of Civil Procedure section 425.16, the anti-SLAPP statute. The probate court denied both motions on the ground that they were filed without leave beyond the 60-day period of section 425.16, subdivision (f). It also denied both motions on the merits.
All further undesignated statutory references are to the Code of Civil Procedure.
Only one party has appealed from the order of denial. Finding no error, we affirm.
BACKGROUND
I. Pre-litigation History
This litigation involves several members of the Adaya family and their assets. The appellants are Amina Adaya and her daughters Nargis Dada, Ruksana Saleh Mohammed, and Tehmina Adaya. The respondent is Amina’s son, Salim Adaya.
For the sake of convenience and clarity, we will refer to the family members by their first names, with no disrespect intended.
In 1983, Amina and her husband, the late Ahmad Adaya, created the Adaya Family Trust (Trust) for the purpose of distributing their assets upon their deaths. According to appellants’ petition, Ahmad “was a wealthy real estate investor and philanthropist” who “built a very lucrative fabric business in Pakistan” (fabric business). The fabric business “generated a net annual income in the neighborhood of $10 million, ” which enabled Ahmad to “amass his initial fortune, with which he later moved to California and purchased vast and valuable real estate holdings.”
Salim, who is both a beneficiary of the Trust and an owner of the fabric business, “is worth more than half a billion dollars.” In 2005, Amina and Ahmad amended the Trust to reduce Salim’s share in Trust assets and to remove him from the list of successor trustees.
Ahmad’s death in 2006 triggered the division of the Trust into four subtrusts, and Amina, Nargis, Ruksana, and Tehmina became the successor trustees (the Trustees).
In February 2009, Salim filed a civil lawsuit against several family-controlled businesses: Adaya Asset Corporation, Adaya Slover Holdings, LLC, Adaya Asset Slover Avenue, L.P., TSA Holdings, Inc., and Slauson Distribution Center, Ltd. (Adaya v. Adaya Asset Corp. (Super. Ct. L.A. County, BC408061) (the civil lawsuit).)
The Trustees viewed the civil lawsuit as a violation by Salim of the Trust’s no contest clause. In August 2009, the Trustees initiated the present trust administration proceeding.
II. The Present Trust Administration Proceeding
On August 7, 2009, the Trustees initiated the present trust administration proceeding by filing a safe harbor petition in probate court. (Former Prob. Code, § 21320.) (Amina Adaya et al. as Co-Trustees, etc. v. Salim Adaya et al. (Super. Ct. L.A. County, BP118029) (the trust proceeding).)As beneficiaries of the Trust, the Trustees sought to ensure that their proposed petition to disinherit Salim would not trigger a violation of the Trust’s no contest clause. On December 22, 2009, the probate court ruled that the proposed petition would not violate the no contest clause.
The repeal of former Probate Code section 21320 took effect on January 1, 2010. (Stats. 2008, ch. 174, § 1.) Under the new statutory scheme, no contest clauses are enforceable against “only three types of claims: (1) direct contests brought without probable cause; (2) challenges to the transferor’s ownership of property at the time of the transfer if expressly included in the no contest clause; and (3) creditor’s claims and actions based on them, if expressly included in the no contest clause.” (Munn v. Briggs (2010) 185 Cal.App.4th 578, 593.)
A. The Trustees’ Petition to Disinherit Salim
After obtaining the safe harbor ruling, the Trustees (and others) filed a petition against Salim (and others) on March 23, 2010. Of the 16 causes of action, 10 were alleged by the Trustees against Salim for: (1) “Declaratory Relief — Disinheritance” (1st cause of action); (2) constructive trust (2nd cause of action); (3) accounting (3rd cause of action); (4) fraud (9th cause of action); (5) conspiracy to defraud (10th cause of action); (6) aiding and abetting breach of fiduciary duty (12th cause of action); (7 & 8) breach of contract (13th & 14th causes of action); (9) breach of fiduciary duty (15th cause of action); and (10) declaratory relief (16th cause of action).
B. Salim’s Petition to Suspend and Remove the Trustees
On March 26, 2010, Salim filed a petition against the Trustees on the theory that they had violated their duties. The petition contained three causes of action for the suspension and removal of the Trustees, an accounting, and a surcharge.
C. The Parties’ Cross-motions to Strike under Section 425.16
The Trustees and Salim both filed special motions to strike under section 425.16. The Trustees moved to strike all three causes of action in Salim’s petition for suspension and removal, an accounting, and a surcharge. Salim moved to strike only the first cause of action in the Trustee’s petition for “Declaratory Relief — Disinheritance.”
On August 18, 2010, the probate court denied both special motions to strike. It denied both motions on the procedural ground that they were filed without permission beyond the 60-day period of section 425.16, subdivision (f), and it also denied both motions on the merits.
1. Both Motions Were Denied as Untimely
Under section 425.16, subdivision (f), a “special motion [to strike] may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.” Accordingly, a special motion to strike may be filed more than 60 days after service of the complaint, but only “in the court’s discretion.”
At the hearing below, the Trustees argued that for purposes of computing their minimum 60-day period to file a special motion to strike, service of Salim’s petition was not complete until they signed and returned the acknowledgement of receipt. The Trustees relied on section 415.30, subdivision (c), which states that service by mail of a summons is deemed complete on the date the acknowledgement of receipt is signed and returned.
In response, Salim argued below that if the Trustees were correct, then his special motion to strike was also timely because it was also filed within 60 days of signing and returning the acknowledgement of receipt. Salim stated that as far as timeliness was “concerned, counsel is making exactly the same argument that I made and he has the same basic facts. He filed his motion 64 days after he served his petition. If service was good for him, service was good for me. It’s the same exact argument.”
The probate court disagreed. It held that the Trustees had failed to show that section 415.30, subdivision (c) applies to trust administration proceedings that are initiated by filing a petition rather than a summons and complaint. It called “[t]he issue of a summons or an acknowledgement of receipt” a “red herring because no authority has been cited indicating that these documents” are required “in this proceeding.... It is required for a complaint. The court is unaware of any such requirement [for] this type of petition.”
Based on its determination that service of both parties’ petitions was complete upon the date of delivery, the probate court concluded that both parties’ motions to strike were untimely because they were filed, without permission, more than 60 days from the date of service.
Although Salim’s request to file a late anti-SLAPP motion was denied, there is no indication that the Trustees sought leave to file a late motion.
2. Both Motions Were Denied on the Merits
As to the merits of the special motions to strike, the probate court concluded that, under the first prong of section 425.16, both parties had established that the other party’s claim or claims arose from acts in furtherance of the right of petition or free speech. Under the second prong, the probate court denied both motions because both parties had established a probability of prevailing on a claim or claims against the other.
In deciding a special motion to strike, the trial court must engage in a two-step process. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue, ’ as defined in the statute. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
In its August 18, 2010 order, the probate court stated that each motion was “denied procedurally and on the merits.” On September 27, 2010, the Trustees timely appealed from the August 18 order. (§ 904.1, subd. (a)(13) [order granting or denying a special motion to strike is appealable].) Salim did not appeal.
DISCUSSION
In an appeal from an order denying a special motion to strike as untimely, the appellate court applies the abuse of discretion standard. (Kunysz v. Sandler (2007) 146 Cal.App.4th 1540, 1541 [denial of a special motion to strike as untimely was not an abuse of discretion].) Under the abuse of discretion standard, the appellate court considers whether, under all of the circumstances that were before the trial court, the ruling exceeds the bounds of reason. (America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 7-8.) If it does not, “the ruling will be affirmed regardless of whether the appellate court might have decided the issue differently.” (Ibid.) Applying this standard here, we conclude that the Trustees have failed to establish that the probate court abused its discretion in denying their special motion to strike as untimely.
The probate court concluded that because section 415.30, subdivision (c) expressly applies to cases requiring a summons and complaint, it does not apply to trust proceedings that are initiated by filing a petition. Thus, service was effectuated when Salim’s petition was delivered to the Trustees’ attorney. We conclude that the probate court was correct, and the Trustees have cited no authority to the contrary. (Levy v. Blum (2001) 92 Cal.App.4th 625, 643 [under the Probate Code, actions regarding the internal affairs of a trust are “‘proceedings’ that are commenced by the filing of a petition”].)
Because the Trustees initially appeared through counsel, section 1015 authorized service of Salim’s petition by delivery to counsel.
The Trustees argue, without citation to authority, that because Salim’s petition initiated a separate trust proceeding, service was not complete until the acknowledgement of receipt was signed and returned. Given that it is the appellant’s burden to demonstrate the existence of prejudicial error, it was incumbent upon the Trustees to explain, with citation to supporting legal authority, why service of Salim’s petition was not complete until the acknowledgement of receipt was signed and returned. We conclude that the Trustees have failed to meet their burden. “‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown....’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
The Trustees alternatively contend that by addressing the merits of their special motion to strike, the probate court agreed to hear their late motion. The record fails to support this conclusion. The record clearly reflects that the probate court intended to deny the motion on both procedural and substantive grounds. In light of our determination that the procedural ground for the ruling was legally sufficient to support the order of denial, we may affirm the ruling on that basis without reaching the additional substantive ground. The fact that the probate court also provided a substantive basis for its ruling does not preclude us from affirming the order solely on the procedural ground. The general rule is that if a trial court’s ruling is correct, it will be affirmed on appeal if it is correct on any applicable theory of law. It is well established that a “decision, itself correct in law, will not be disturbed on appeal.... If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.” (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329, quoted in 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 346, p. 397.) We therefore express no opinion on the merits of the Trustees’ special motion to strike.
DISPOSITION
The August 18, 2010 order denying the Trustees’ special motion to strike is affirmed. Salim Adaya is awarded his costs on appeal.
We concur: EPSTEIN, P.J.WILLHITE, J.
SLAPP is the acronym for Strategic Lawsuits Against Public Participation.
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 Constitution or the 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.”