2013 Case Alerts

Filed April 17, 2013, Fourth District, Div. One Cite as D060906

Where a trustee filed a malicious prosecution claim against an heir and his attorneys following the heir’s unsuccessful petition for breach of trust and removal, the attorneys’ motion to strike the claim under California’s anti-SLAPP statute, Code of Civil Procedure section 425.16, was properly denied.  Under the anti-SLAPP statute, the trustee had shown a probability of success on the merits of his claim by demonstrating that the heir’s prior petition was filed with malice and without probable cause.  The Court of Appeal also upheld an award of attorney fees to the trustee, and went on to impose sanctions for the attorneys’ frivolous appeal of the anti-SLAPP ruling.  

(2013) 214 Cal.App.4th 62.  
Filed March 5, 2013, Court of Appeals of California, Second District, Division Three.

Conservatee’s mother lacked standing to appeal order on conservators’ petition setting his visitation schedule, directing change in his living services vendor and ordering disclosure of his personal, medical and financial records.  Mother, who alleged only violations of nonappealing adult conservatee’s rights, was not an aggrieved party for purposes of appeal under Code of Civil Procedure section 902.  Nor did Probate Code section 1829, permitting relative of proposed conservatee to appear at conservatorship hearing below, support mother’s right to appeal.

Filed January 9, 2013, Fourth District, Div. Three
Cite as G046460

Plaintiff’s suit on the decedent’s promise to make distribution from an estate was timely when filed within one year from date of death as required by Code of Civil Procedure section 366.3, even though the plaintiff failed to initiate his suit within 90 days of the personal representative’s rejection of claim as ostensibly required by Probate Code section 9353.  The court held that Code of Civil Procedure section 366.3 was the more specific statute and hence controlled the outcome.