Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 291371
Ruvolo, P. J.
I.
INTRODUCTION
Appellant Donald R. Farrell (Donald) appeals from an order denying his special motion to strike a verified petition filed by Lois Farrell (Lois), pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute. In her petition, Lois invoked the court’s jurisdiction under Probate Code section 17200, to resolve a dispute among family members over the right to share in the proceeds of a private trust set up by Edith Farrell, who is deceased. We conclude the anti-SLAPP motion was properly denied because Donald has not met his burden of demonstrating that Lois’s Probate Code section 17200 petition was a SLAPP suit, namely, “that the subject cause of action is in fact one ‘arising from’ the defendant’s protected speech or petitioning activity. . . .” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66, citing § 425.16, subd. (b) (Equilon).) We therefore affirm the trial court’s order.
The acronym “SLAPP” stands for “ ‘strategic lawsuits against public participation.’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 85, fn. omitted (Navellier).) Hereafter, for the reader’s convenience, we refer to the parties by their first names, as the parties themselves do in their briefing. Furthermore, unless otherwise specified, all statutory references are to the Code of Civil Procedure.
II.
FACTS AND PROCEDURAL HISTORY
Edith Farrell (Edith) died on January 29, 2008. During her lifetime, Edith created a revocable inter vivos trust and executed a pour-over will that left all of her estate, including a home in San Francisco, California, in equal shares to her three sons––Donald (appellant herein), Manuel Farrell, Jr. (Manuel), and Richard Farrell (Richard). Upon Edith’s death, Donald became the trustee.
A pour-over will operates in conjunction with a decedent’s trust. The pour-over will causes any portion of the decedent’s estate not already included in the trust to become a trust asset, to be distributed to the trust beneficiaries on the terms provided by the trust. (See, e.g., Conservatorship of Davidson (2003) 113 Cal.App.4th 1035, disapproved on other grounds in Bernard v. Foley (2006) 39 Cal.4th 794, 816, fn. 14.)
On March 4, 2008, shortly after his mother Edith’s death, Manuel died. Lois (respondent herein) is Manuel’s widow and the legal representative of his estate. Manuel’s death precipitated a dispute between his brothers and his heirs centering on the question of whether Manuel’s interest in Edith’s estate terminated upon his death or whether it passed to his heirs, including his widow Lois.
Edith’s wishes in this regard are reflected in relevant provisions of the two documents constituting her estate plan, her trust and her will. Edith’s trust provides, in pertinent part, “After the death of Trustor and payments are made or reserved . . . all the Trust Estate then in the possession of the Trustee shall be held, administered and distributed by the Trustee to Trustor’s sons, Manuel Farrell, Jr., Richard Farrell, and Donald Farrell in equal shares, share and share alike, or to the survivor.” (Italics added.) Edith’s will provides, in pertinent part, “[A] beneficiary shall not be deemed to have survived me if that beneficiary dies within sixty (60) days after my death.” Manuel survived Edith by 33 days.
Both Lois and Donald retained counsel. In a letter to Donald’s attorney dated April 10, 2008, Lois’s counsel quoted language from the trust and maintained that because “Manuel Farrell, Jr., died subsequent to Edith Rita Farrell, he is a beneficiary and his estate is entitled to a distribution from the Trust . . . .” Donald’s attorney responded on April 16, 2008, asserting that Manuel’s estate was entitled to nothing because he did not survive his mother for 60 days and because he did not survive the distribution of the trust.
On June 19, 2008, Lois filed a verified petition under Probate Code section 17200 seeking (1) declaratory relief confirming that Manuel’s estate is a trust beneficiary; (2) removal of Donald as trustee and replacement by a professional trustee; and (3) an accounting from Donald for the period of time he administered the trust.
Under Probate Code section 17200, “[a] trust beneficiary may petition the probate court regarding matters affecting the internal affairs of a trust, unless the trust instrument expressly withholds authority to proceed. Among other powers, the court has jurisdiction (1) to interpret the terms of the trust, (2) to determine the existence or nonexistence of any power, privilege, duty or right, (3) to instruct the trustee, and (4) to compel the trustee to report information about the trust or account to the beneficiary. [Citations.]” (Johnson v. Kotyck (1999) 76 Cal.App.4th 83, 86.)
Donald did not answer the petition. Instead he filed a demurrer raising the question of whether, since Manuel failed to meet the 60-day survivorship clause in Edith’s will, Lois lacked standing to bring the lawsuit. He also filed a motion to strike, claiming that Lois’s petition was a SLAPP suit. The demurrer was overruled and the motion to strike was denied. This appeal followed.
In this appeal, Donald challenges the trial court’s ruling on his SLAPP motion as well as the trial court’s ruling on his demurrer. As we hold in a later portion of this opinion, Donald may not pursue his appeal from the court’s ruling on demurrer.
III.
DISCUSSION
A. Standard of Review
The anti-SLAPP statute authorizes a special motion to strike a cause of action that (1) tends to chill the defendant’s rights of speech and petition, and (2) lacks demonstrable merit. Ruling on such a motion involves “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. (§ 425.16, subd. (b)(1).) 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, supra, 29 Cal.4th at p. 67.)
On appeal, we independently determine whether the challenged cause of action arose from the defendant’s exercise of the constitutional right of petition or free speech, and if so, whether the plaintiff has demonstrated a probability of prevailing on the merits of the claim. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1056; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.)
B. The Petition Filed by Lois Does Not Arise from Constitutionally Protected Acts
Donald contends that Lois’s Probate Code section 17200 petition arose from Donald’s exercise of his right to free speech. Namely, “Donald’s refusal to provide financial information or account is an act in furtherance of the right of free speech protected under the anti-SLAPP statute because ‘the constitutional right of free speech includes the right not to speak.’ [Citations].” He goes on to argue, “[t]he refusal of Donald to provide financial information according to Lois’[s] demands and [his] refusal to account [are acts] in furtherance of Donald’s right of free speech in connection with an issue of public interest, within the meaning of Code of Civil Procedure section 425.16.” Therefore, Donald’s acts in “furtherance of the right of free speech [are] protected under the anti-SLAPP statute.”
When the matter was argued below, Donald also claimed that because Lois’s petition referenced a letter written by his attorney setting forth his position that Manuel’s estate was not a trust beneficiary, Lois’s lawsuit arose from the protected activities of petition and speech. However, Donald does not make this argument on appeal. Any such argument therefore is waived. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 [“ ‘An appellate brief “should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.” [Citation.]’ [Citation.]”)
“[T]he ‘arising from’ requirement is not always easily met. [Citations.]” (Equilon, supra, 29 Cal.4th at p. 66.) “In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity. [Citations.]” (Navellier, supra, 29 Cal.4th at p. 89, original italics; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (Cotati).) “In Navellier, the court cautioned that 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.’. . .” (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 187 (Martinez), quoting Navellier, supra, 29 Cal.4that p. 92.) In other words, “it is the principal thrust or gravamen of the plaintiff’s cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.” (Martinez, supra, 113 Cal.App.4th at p. 188, original italics; Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 802 [applicability of anti-SLAPP statute determined by “principal thrust or predominant nature of the complaint”].)
Upon considering the pleadings, we conclude the petition filed by Lois under Probate Code section 17200 does not arise from protected free speech or petitioning activity. The pleadings submitted by the parties establish the “principal thrust or gravamen” of the petition was to establish Donald’s error in failing to acknowledge Lois’s and her heirs’ entitlement to share in the proceeds of Edith’s estate and to rectify his failure to perform his duties with regard to management of the trust, including his duty to make a proper accounting to trust beneficiaries. (See Cotati, supra, 29 Cal.4th at p. 79; Navallier, supra, 29 Cal.4th at p. 89.) As for relief, Lois sought instructions from the court on the proper construction of the trust language and the proper performance of Donald’s duties as trustee. None of the alleged activities involve protected speech or petitioning activity under the anti-SLAPP statute. (See, e.g., Benasra v. Mitchell Silberberg & Knupp (2004) 123 Cal.App.4th 1179, 1181 [action against attorney for breach of fiduciary duty did not arise from attorney’s right of petition or speech].)
Donald protests that, notwithstanding the allegations made in Lois’s verified petition, her lawsuit really “ ‘arose from’ Donald’s refusal to provide trust financial information or account incident to the litigation process itself.” He goes on to argue that his “refusal to provide financial information or account is an act in furtherance of the right of free speech protected under the anti-SLAPP statute where ‘the constitutional right of free speech includes the right not to speak.’ [Citation.]” To conclude, in accordance with Donald’s argument that the petition filed by Lois arose from his protected speech (or more precisely, his right not to speak) would mean that nearly any action involving the withholding of information would fall under the anti-SLAPP statute. Put another way, under Donald’s construction of the law, any trustee who fails to fulfill his or her accounting responsibilities could immunize himself or herself from liability by claiming that the trust beneficiary’s action demanding a proper accounting was in retaliation for exercising the right of free speech and must be dismissed under the anti-SLAPP statute. In the words of our Supreme Court, we are certain the Legislature did not intend such an absurd result. (Cotati, supra, 29 Cal.4th at p. 77.)
As already noted, “[t]he 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, supra, 29 Cal.4th at p. 92.) Donald cites no authority that the actions alleged in Lois’s petition––recalcitrance and resistance to the fulfillment of a trustee’s legal duties––are protected activity or acts in furtherance of the constitutional right of free speech. Consequently, we find Donald has not met his burden of showing that at least some of the acts on which Lois’s claims are based were taken in furtherance of his constitutional right of free speech in connection with a public issue. (See Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308 [plaintiff cannot avoid the anti-SLAPP statute by combining allegations of protected and unprotected activity under one cause of action].)
Because Donald failed to meet his initial burden under section 425.16, subdivision (b) of showing the complaint arises from protected activity, the burden never shifted to Lois to demonstrate a probability that she would prevail on her Probate Code section 17200 petition. Accordingly, we need not address that issue in this appeal, although it is extensively briefed by the parties. (Garretson v. Post (2007) 156 Cal.App.4th 1508, 1524-1525; Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1284.)
C. Ruling on Demurrer
Donald has also appealed from the court’s order overruling his demurrer to Lois’s petition. In his demurrer, Donald claimed that Lois did not have standing because Probate Code section 17200 limits the right to petition the court involving a trust to “a trustee” or a “beneficiary.” Donald claimed that Lois is neither of these and thus, “there are no allegations to establish Lois’[s] standing to contest the trust.”
We decline to review the trial court's order overruling Donald’s demurrer to Lois’s petition. As Donald acknowledges, no appealable final judgment has been entered, and, unlike an order denying an anti-SLAPP motion, the order overruling the demurrer is not immediately appealable. (Compare § 904.1, subd. (a)(13); San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 912-913.)
Nonetheless, Donald urges us to review the order pursuant to section 906. As provided by section 906, we “may review . . . any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party . . . .” Thus, we may review the order overruling Donald’s demurrer if it involves the merits of or necessarily affects an appealable judgment or order. (See, e.g., 1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 572, fn. 1.)
We find the order overruling Donald’s demurrer is not appealable pursuant to section 906. Our ruling affirming the denial of the special motion to strike does not depend on a review of the demurrer, which alleges, on various grounds, that Lois “fails to state a cause of action on any legal theory. . . .” The legal issues arising from the demurrer are not coterminous or intertwined with the legal issues we have addressed on the motion to strike. Donald’s desire to avoid further litigation is an insufficient showing that the order overruling the demurrer substantially affects the rights of a party so as to allow review of an interlocutory order as part of this appeal. (Accord, Fontani v. Wells Fargo Investments, LLC (2005) 129 Cal.App.4th 719, 735-736, disapproved on another ground in Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 203, fn. 5.)
D. The Cross-Motions for Sanctions
On December 11, 2008, Lois filed a motion for sanctions accompanied by a declaration from Lois’s counsel requesting reimbursement of her attorney fees on appeal in the amount of $16,549.50. The motion argued that Donald’s appeal was frivolous, citing section 907 and California Rules of Court, rule 8.276(a). On December 15, 2008, Donald filed his opposition to Lois’s motion and a cross-motion for sanctions requesting $2,250 in attorney fees for opposing the sanctions motion.
“When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.” (§ 907.) California Rules of Court, rule 8.276(a)(1) provides that a Court of Appeal may impose sanctions for “[t]aking a frivolous appeal or appealing solely to cause delay.” An appeal may be deemed frivolous because it was undertaken for an improper purpose or because any reasonable attorney would find it devoid of merit. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649 (Flaherty).) “[A]n appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts attention from the already burdensome volume of work at the appellate courts. Thus, an appeal should be held to be frivolous only when it is prosecuted for an improper motive––to harass the respondent or delay the effect of an adverse judgment––or when it indisputably has no merit––when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]” (Id. at p. 650.)
As Donald points out, Lois does not argue that his appeal was taken for an improper purpose, such as harassment or delay. Instead, Lois argues that Donald’s appeal was frivolous because “[n]o reasonable attorney would claim that a trustee has no duty to follow the terms of the trust and communicate with and account to trust beneficiaries because it violates his First Amendment right not to speak.”
Flaherty cautions, however, that when evaluating whether an appeal is frivolous, we must be careful to “avoid a serious chilling effect on the assertion of litigants’ rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. Counsel should not be deterred from filing such appeals out of fear of reprisals.” (Flaherty, supra, 31 Cal.3d at p. 650.) Indeed, because the borderline between a frivolous appeal and an appeal which simply has no merit is vague, this “punishment should be used most sparingly to deter only the most egregious conduct.” (Id. at pp. 650-651.)
While Donald advanced no legitimate ground for striking the petition under section 425.16, we cannot conclude that this appeal was frivolous; and we therefore will deny Lois’s motion for sanctions. (See Applied Business Software, Inc. v. Pacific Mortgage Exchange, Inc. (2008) 164 Cal.App.4th 1108, 1119.) We also deny Donald’s request for attorney fees in opposing the sanctions motion.
IV.
DISPOSITION
The order denying Donald’s special motion to strike is affirmed. Sanctions requested by both Donald and Lois are denied.
We concur: Reardon, J., Sepulveda, J.