Cite as E077320
Filed January 5, 2023
Fourth District, Div. Two
By Erika J. Gasaway
Hopkins & Carley
Headnote: Elder Abuse Restraining Orders – Anti-SLAPP motions
Summary: Where the trustee applied for an elder abuse restraining order (“EARO”), and the defendants responded with an anti-SLAPP motion, the court properly denied the anti-SLAPP motion but abused its discretion by declining to hear the EARO until after the anti-SLAPP motion.
The trustee applied for an EARO to stop the settlor’s second wife, her children, their attorneys, and a purported friend from financially abusing the settlor or making any changes to his estate plan, among other things. The defendants responded by filing a special motion to strike (“anti-SLAPP motion”) under the theory that the trustee’s EARO was based on new litigation the defendants had filed in their effort to remove the trustee and contest a trust amendment. The trial court denied the temporary EARO pending a hearing on the merits of the EARO that would not be heard until after the anti-SLAPP motion. The trial court denied the anti-SLAPP motion and the defendants appealed, thereby staying the underlying proceeding on the EARO pending appeal. The trustee cross-appealed on grounds that the trial court should have used its case management power to hear the EARO concurrently with the anti-SLAPP motion to avoid delay.
The appellate court affirmed denial of the anti-SLAPP motion but held the trial court abused its discretion in declining the trustee’s request to hear the EARO together with the anti-SLAPP motion. The anti-SLAPP motion was properly denied because the EARO was not based on protected activity in the form of the defendants’ filing of the new action itself, but instead the filings were evidence of the defendants’ abusive activity that gave rise to the application for the EARO. Namely, their continued acts of isolating, agitating, and confusing the settlor to effectuate a change in his estate plan were the acts giving rise to the EARO. The trial court abused its discretion, however, in refusing to hear the EARO until after the anti-SLAPP motion because, given the automatic stay, doing so interfered with the trustee’s ability to protect the settlor during the time that elapsed pending appeal. The trial court should have revisited the prior denial of the temporary EARO or set a hearing on the EARO at the same time as the anti-SLAPP motion. The appellate court also held the settlor was not entitled to independent counsel under newly-enacted Probate Code section 1471 because an application for an EARO is not one of the enumerated five types of proceedings in that code section. The opinion also contains a useful footnote for litigators that confirms estate planning is not protected activity for purposes of the anti-SLAPP statue.