Trusts and Estates

Gaynor v. Bulen

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Cite as D070907
Filed January 23, 2018, Fourth District, Div. One

By Daniel C. Kim
Weintraub Tobin Chediak Coleman Grodin Law Corporation

“Grandfather” Gaynor died in 1983, leaving a trust estate split three ways, one share for each of his three children and their issue. Following litigation concerning management and control of the trust, the prevailing beneficiaries filed a surcharge petition against the co-trustees, and later added James Bulen based on his alleged de facto trustee status. The beneficiaries sued for breach of fiduciary duty consisting of distributing income only to the senior generation, transferring the primary asset to an LLC to gain further control, failing to provide accountings, concealing the mental incompetence of a co-trustee, seeking modification of the trustee succession plan, and numerous other claims. Bulen filed an anti-SLAPP motion to strike the claims against him, which was denied. The court found the claims at issue were not governed by the anti-SLAPP statute.

The appellate court affirmed. To invoke the anti-SLAPP statute, Bulen was required to show that the claims against him arose from constitutionally-protected activity. The appellate court found that Bulen failed to meet this initial burden. Although Bulen’s filing of petitions related to trust litigation was constitutionally protected, the alleged breaches of fiduciary duty arose from conduct other than the protected activity. Having affirmed that Bulen had failed to meet his initial burden, the court did not evaluate the second step of the anti-SLAPP statute relating to the probability of success.

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