Cite as G060597
Filed January 3, 2023, Certified for Publication on January 26, 2023
Fourth District, Div. Three
By Michelle Barnett Batista
Aaron, Riechert, Carpol & Riffle, APC
Headnote: Trustee Surcharge Petitions – Standing – Anti-SLAPP Motions
Summary: Allegations that trustee breached fiduciary duties by using trust assets to fund meritless litigation did not arise out of protected activity.
Jonathan filed a surcharge petition alleging that the trustee of his father’s revocable trust had wasted and misused trust assets by pursuing a meritless petition for instructions and using trust assets to fund elder abuse litigation against Jonathan and his brothers. The trustee responded by filing a special motion to strike (“anti-SLAPP motion”) on the theory that Jonathan was suing him for filing and funding litigation, a protected activity. The trial court denied the anti-SLAPP motion and the trustee appealed.
The appellate court affirmed. Misconduct in the administration of a trust and preservation of trust assets is not action in furtherance of a person’s right of petition or free speech. Jonathan does not allege that the petition for instructions or elder abuse lawsuit in itself produced the injury or gave rise to liability. Rather, the core injury-producing conduct is the waste and misuse of trust assets. Jonathan’s allegations that his father was incompetent were sufficient to confer standing on Jonathan, subject to his ultimate burden of proving his father’s incompetence.