New Case Law: WHITE v. DAVIS
(2023) 87 Cal. App. 5th 270

Executive Summary: (1) Applications for elder abuse restraining orders cannot be challenged under California’s anti-SLAPP statute when the applications did not arise out of “protected activity”, but rather out of actions to unduly influence an elder regarding their estateThe assets and liabilities left behind by a decedent. planning; (2) Where at all possible, a trial court must use its ability to manage its own calendar and docket to prevent delay in deciding applications for elder abuse restraining orders.

Factual Background

Thomas, now in his nineties, had previously created an estate plan which included the creation of a living trustA trust that is created and becomes effective during the settlor’s lifetime.. As Thomas aged, his biological daughters felt that their stepmother was isolating Thomas from them. This ultimately led to extensive litigationLegal proceedings brought before a court to enforce a legal right., the creation of a conservatorship, and one of Thomas’s daughters (White), as cotrustee of the living trustAn arrangement in which property interests are legally held by one person (the trustee) at the request of another (the settlor) for the benefit of a third party (the beneficiary)., filing applications for elder abuse restraining orders against her stepmother and her own biological children (White’s stepsiblings), and their attorneys. These applications for elder abuse restraining orders were based on the defendants’ continued efforts to unduly influence Thomas to change his estate plan to their benefit.

Defendants then filed their own anti-SLAPP motions against White, claiming that the applications for restraining orders arose from protected activities involving the exercise of constitutionally protected rights. In short, California’s anti-SLAPP statute allows a preliminary challenge to a lawsuit against a person for some action they took which was part of that person’s constitutional right of free speech. The point is that you have a right to exercise your constitutional rights without the threat of being dragged into court. White tried to have the court hear the motions at the same time as her applications for restraining orders. Instead, the court decided to first have a hearing on the anti-SLAPP motions.

Protected speech includes any written or oral statements made at an official proceeding, any written or oral statements made in connection with an official proceeding, any written or oral public statement in connection with an issue of public interest, and any other conduct exercising the constitutional rights of petitionA formal written request presented to a court which asks for some form of relief, such as a Petition to Probate a Will, or a Petition to Determine Title to Property. or free speech in connection with a public issue or an issue of public interest.

At the hearing on their anti-SLAPP motions, the defendants argued that White’s applications for restraining orders should be barred because her applications arose out of constitutionally protected activities and that White was not likely to succeed on the merits. White, in turn, argued that the defendants’ actions leading up to White’s applications for restraining orders did not involve constitutionally protected activity, and she was in fact likely to succeed on the merits of her applications.

The Court denied each of the anti-SLAPP motions. The defendants then appealed the court’s decision, and White cross-appealed to argue the court should have heard the applications for elder abuse restraining orders at the same time as the anti-SLAPP motions.

On appeal, White carried the day. The appellate court upheld the trial court’s denial of the defendants’ anti-SLAPP motions, and it also held that the trial court abused its discretion by not hearing the applications for restraining orders at the same time.

Regarding the Anti-SLAPP Motions

The appellate court affirmed that White’s applications for restraining orders did not arise out of the defendants’ protected activity, but out of their actions to unduly influence Thomas regarding his decades-long estate plan.

In deciding whether to grant an anti-SLAPP motion, a trial court considers to basic points: 1) whether the defendant can establish that the challenged lawsuit actually arises from a protected activity (or, stated differently, whether the protected activity is the cause of the alleged harm); and, if so, 2) whether the plaintiff can overcome that protection by showing a probability of success on the merits of the lawsuit.

The appellate court concluded that, although the defendants’ various litigation activities are protected activities under the anti-SLAPP statute, the defendants’ alleged plans to unduly influence Thomas and change his estate plans are not. The defendants’ acts of isolating, agitating, and confusing Thomas in order to effectuate a change in his estate plans were the causes of liability justifying elder abuse restraining orders. The defendants’ protected litigation activities were not themselves the cause of the liability – those allegations merely provided evidence of the defendants’ acts of isolating, agitating, and confusing Thomas, but they were not necessary to establish the alleged liability in the underlying lawsuit. This, of course, is not to say that liability was established at this stage, but simply that the lawsuit was sufficiently valid on its face to allow the lawsuit to proceed.

Regarding White’s Cross-Appeal

The appellate court concluded that the trial court was obligated to use its ability to manage its own calendar to prevent delay in considering the merits of White’s applications for elder abuse restraining orders, particularly in light of the importance of the relief sought. Even though the trial court denied the anti-SLAPP motions, as soon as the defendants appealed that decision, the entire case was automatically put on hold. This prevented the trial court from being able to hear White’s applications for restraining orders in an appropriately timely manner.

David J. Hallstrom, Esq. and his trust and probate litigation team are here to help with any of your trust or probate concerns. We bring a broad base of experience and a global perspective to help you achieve effective, practical, and timely results.

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