Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County No. A182042, Gerald G. Johnston, Judge.
Michael Creamer for Defendant and Appellant.
Latham & Watkins, Jon D. Anderson, Kristine L. Wilkes, and Michael W. De Vries for Plaintiff and Respondent
OPINION
IKOLA, J.
Appellant Alan Hasso (Alan) appeals from an order denying his anti-SLAPP motion to strike respondent Helene Hasso’s (Helene) probate petition. The court correctly denied the motion because Helene repeatedly represented she did not assert a cause of action against Alan. We affirm.
“SLAPP is an acronym for ‘strategic lawsuit against public participation.’” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1; see Code Civ. Proc., § 425.16.) All further statutory references are to the Code of Civil Procedure unless otherwise stated.
We respectfully adopt the parties’ use of first names for clarity.
FACTS
Helene filed a first amended probate petition (FAP) in November 2007 containing the following allegations. Helene is the surviving spouse of Norman E. Hasso and the lifetime income beneficiary of a trust he had created. The remainder beneficiaries are Norman and Helene’s children, Heather and Ronald. The trustee is Norman’s sister, May. The successor trustee is Norman and May’s brother, Alan.
More particularly, Norman created the Norman E. Hasso 1993 Trust, which was divided when he died into the “Exemption Trust” and the “Marital Trust.” The Marital Trust was itself divided, and now comprises two subtrusts. These subtrusts are the “trust” at issue here.
Helene alleged May breached the duty she owed to Helene as a beneficiary. May failed to distribute trust income to Helene, wrongly characterized income as principal, denied Helene’s requests for information and failed to provide an accounting, and acted adversely to Helene in a variety of ways. May and the other Hassos consider the trust income as belonging to their family, not an “outsider” like Helene. May thus tries to avoid distributing income to Helene, and instead works to maximize the amount of trust assets that will eventually flow to Heather and Ronald.
Helene mentioned Alan in three paragraphs scattered across the FAP’s 25 pages. She alleged Alan has “personal animosity” toward Helene, frivolously sought to have a conservator appointed for her, “asserted numerous baseless legal claims against” her, “bullied” her to obtain a default judgment against her, and is “working with [Heather and Ronald] to draft the pleadings for [a] threatened lawsuit against” her. She further alleged “Alan Hasso, who is identified in the Hasso Trust as a successor trustee if [May] ceases to act as trustee, is not fit or qualified to serve as trustee either. Rather, an independent, disinterested, and unbiased trustee should be appointed . . . .”
In the prayer for relief, Helene sought an order directing May to show cause why she should not be removed as trustee, and “appointment of a successor trustee of the Marital Trust on a permanent basis.” She also sought damages and various other forms of relief against May. She does not mention Alan in the prayer. Consistent with Alan’s position as successor trustee, she served him with notice of the FAP. (Prob. Code, §§ 17203, 84.)
Alan filed an anti-SLAPP motion to strike the FAP. He contended it sought his removal as successor trustee based on his protected petitioning activity of participating in litigation against May.
The court requested supplemental briefs “as to whether Helene Hasso has stated a cause of action against [Alan] in her [FAP.]” Helene stated in her brief, “No fair reading of the FAP could lead to the conclusion that the FAP attempts to state a cause of action against [Alan],” as the FAP fails to “implicate[] any ‘primary duty’ owed by . . . Alan.” She denied the FAP sought to remove Alan as successor trustee, “a position that he does not even currently hold. The issue . . . is not yet even ripe for decision. Until May Hasso is removed from her position, the issue of whether Alan is fit to serve as trustee is not before this court.”
At the hearing, Helene again disclaimed any present intention to seek Alan’s removal. When Alan’s counsel claimed the FAP “attempts to remove [Alan] as the successor trustee,” the court stated, “I don’t believe that that remedy is being sought.” Helene’s lead counsel confirmed, “That’s correct. It’s not.” Later, another of Helene’s lawyers repeated, “There is no cause of action stated against Alan Hasso.” He continued, “This is an issue that is not before the court. Alan Hasso is not the trustee of the trust. So, of course, we’re not seeking his removal.”
When Alan’s lawyer responded Helene “would like to knock out both trustees,” the court stated, “I don’t think it can happen.” It explained, “Nothing that occurs in this hearing is going to be related to the fitness of Alan Hasso to act as successor trustee should that eventuality ever even occur. But I understand why, in light of the language and the [FAP], that you have a concern about it. Frankly, were I in your client’s position, I would look at it in the same fashion and just wonder what my exposure is. [¶] That being said, I don’t think he has any. He has no fiduciary obligation. . . . In your case . . . I think it’s a motion that was pretty well taken, but I still go against you on this. I think I should deny this motion. And I think clearly we have statements on the record now as to what the intent of our petitioner is . . . . They indicated they are not trying to disqualify him. And I’ve indicated that I don’t think it’s possible to do so in this proceeding, and I will not allow it.” Accordingly, the court denied Alan’s motion.
DISCUSSION
The anti-SLAPP statute 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.” (§ 425.16, subd. (b)(1).) An order denying an anti-SLAPP motion to strike the FAP is directly appealable and subject to independent review. (§425.16, subd. (i); Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)
Alan bears the initial burden of establishing the FAP asserts a cause of action against him arising from free speech or petitioning activity protected by the anti-SLAPP statute. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89; § 425.16, subds. (b)(1).)
If Alan meets his burden, Helene would then bear the burden to “establish that there is a probability that [she] will prevail on the claim.” (§ 425.16, subd. (b)(1).) Alan failed to meet his initial burden for the reasons stated post; thus, we need not decide whether Helene met her burden.
Thus, the threshold issue is whether the FAP purports to state a cause of action against Alan. (See Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1375, 1392 [insurer’s anti-SLAPP motion denied where plaintiffs “did not name [insurer] as a defendant in the complaint, nor did they seek any relief against [it] in the complaint”].) Alan correctly notes a proper party may petition the court to amend a trust to name a new successor trustee, even though the successor trustee designated in the trust has not yet taken office. (Stewart v. Towse (1988) 203 Cal.App.3d 425, 429-431 (Stewart) [court has jurisdiction to hear petition; issue is ripe].) Alan contends the FAP is a Stewart petition, and thus purports to state a cause of action against him. Helene does not address Stewart, let alone distinguish it, in her brief on appeal.
The four corners of the FAP tend to support Alan’s claim. In it, Helene alleged Alan has “personal animosity” toward her. She further alleged Alan engaged in frivolous and “baseless” litigation against her, including seeking to have a conservator appointed for her, and “bullied” her to obtain a default judgment against her. She alleged Alan “is not fit or qualified to serve as trustee” and should be passed over in favor of a new trustee if May is removed. The court would have authority to do so. (Stewart, supra, 203 Cal.App.3d at pp. 429-431.) As the trial court aptly told Alan’s counsel: “Frankly, were I in your client’s position, I would look at [the FAP] in the same fashion and just wonder what my exposure is.”
The FAP’s failure to mention Alan by name in its prayer for relief would not necessarily limit the eventual judgment. “In a contested action a defective or even missing prayer is not fatal to recovery because, so long as the defendant answers the complaint, ‘the court may grant . . . any relief consistent with the case made by the complaint and embraced within the issue.’” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 538 (Ferraro).)
But Helene’s counsel represented over and over she was not seeking in the FAP to remove Alan as successor trustee. She asserted in her supplemental brief, “No fair reading of the FAP could lead to the conclusion that the FAP attempts to state a cause of action against [Alan],” as the FAP fails to “implicate[] any ‘primary duty’ owed by . . . Alan.” She further claimed Alan’s removal “is not yet even ripe for decision. Until May Hasso is removed from her position, the issue of whether Alan is fit to serve as trustee is not before this Court.” And at the hearing, Helene’s counsel told the court she was not seeking to remove Alan. Her counsel stated, “of course, we’re not seeking [Alan’s] removal.” Counsel unambiguously declared, “There is no cause of action stated against Alan Hasso” in the FAP. Helene relies upon these and similar representations on appeal to show the motion was correctly denied.
Helene is bound by these repeated representations. “[A]n oral statement by counsel in the same action is a binding judicial admission if the statement was an unambiguous concession of a matter then at issue and was not made improvidently or unguardedly.” (Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 752.) Helene’s counsel made their representations in writing and in open court while addressing the precise issue of whether the FAP asserts a cause of action against Alan. The representations were far from ambiguous, improvident, or unguarded. They were clear, deliberate, and binding.
Moreover, the court expressly relied upon these representations in denying Alan’s motion. It stated, “And I think clearly we have statements on the record now as to what the intent of our petitioner is . . . . They indicated they are not trying to disqualify [Alan]. And I’ve indicated that I don’t think it’s possible to do so in this proceeding, and I will not allow it.” Helene would thus be judicially estopped from making an about-face and later seeking Alan’s removal pursuant to the FAP. (Ferraro, supra, 161 Cal.App.4th at p. 558 [elements of judicial estoppel].) Judicial estoppel “rests on the principle that litigation is not a war game unmoored from conceptions of ethics, truth, and justice. It is quite the reverse. Our adversarial system limits the affirmative duties owed by an advocate to his adversary, but that does not mean it frees him to deceive courts [or] argue out of both sides of his mouth . . . behind a smokescreen of self-contradictions and opportunistic flip-flops.” (Ibid.)
Helene cannot seek affirmative relief against Alan based on the FAP, having repeatedly denied it purports to state a cause of action against him. And so Alan cannot pursue an anti-SLAPP motion to strike it.
DISPOSITION
The order is affirmed. Helene shall recover her costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., ARONSON, J.