Opinion
B312525 B316429
12-11-2023
CHRISTINE CHUI, Individually and as Guardian, etc., Plaintiff and Appellant, v. BENJAMIN TZE-MAN CHUI, as Trustee, etc., et al., Defendants and Respondents
Bohm Wildish &Matsen, James G. Bohm; Law Offices of John A. Belcher and John A. Belcher for Plaintiff and Appellant Christine Chui. Willkie Farr &Gallagher, Alex M. Weingarten and Eric J. Bakewell for Defendant and Respondent Benjamin Chui. Oldman, Cooley, Sallus, Birnberg, Coleman &Gold, Oldman Sallus &Gold and Justin B. Gold for Defendant and Respondent Esther Shou May Chui Chao. Glaser Weil Fink Howard Avchen &Shapiro and James T. Grant for Defendant and Respondent Margaret Tak-Ying Chui Lee.
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County No. BP154245, Gus T. May, Judge. Affirmed.
Bohm Wildish &Matsen, James G. Bohm; Law Offices of John A. Belcher and John A. Belcher for Plaintiff and Appellant Christine Chui.
Willkie Farr &Gallagher, Alex M. Weingarten and Eric J. Bakewell for Defendant and Respondent Benjamin Chui.
Oldman, Cooley, Sallus, Birnberg, Coleman &Gold, Oldman Sallus &Gold and Justin B. Gold for Defendant and Respondent Esther Shou May Chui Chao.
Glaser Weil Fink Howard Avchen &Shapiro and James T. Grant for Defendant and Respondent Margaret Tak-Ying Chui Lee.
ROTHSCHILD, P. J.
Christine Chui filed a petition under Probate Code section 850 asserting a claim that certain beneficiaries of a trust-Benjamin Tze-Man Chui, Margaret Tak-Ying Chui Lee, and Esther Chao-should be disinherited pursuant to a no contest provision in the trust document (the disinheritance claim). Benjamin, Margaret, and Esther filed anti-SLAPP motions to strike some or all of Christine's claims. (Code Civ. Proc., § 425.16.) The court granted the anti-SLAPP motions as to the disinheritance claim and otherwise denied the motions. Esther and Benjamin subsequently filed motions for attorney fees under the anti-SLAPP statute, which the court granted.Christine appealed from the orders granting the anti-SLAPP motions (case No. B312525), and from the orders granting the attorney fees motions (case No. B316429).
Subsequent unspecified statutory references are to the Probate Code.
To avoid confusion and to enhance the opinion's readability, we will hereafter refer to some individuals by their first names. We mean no disrespect.
It does not appear from our record that Margaret filed a motion for attorney fees.
We affirm the orders granting the anti-SLAPP motions and the orders granting the attorney fees motions.
FACTUAL AND PROCEDURAL SUMMARY
A. Background
King Wah Chui (King) and Chi May Chui (May) had three children: Robert, Margaret, and Esther. Robert and his first wife Helena had a son, Benjamin. Robert and Helena divorced, and Robert married Christine. Robert and Christine had two children, Jacqueline and Michael.
King and May are the settlors and original trustees of a trust (the Chui Trust) established and governed by certain writings we collectively refer to as the "declaration of trust." (Capitalization omitted.) According to the declaration of trust, three subtrusts-Trust A, Trust B, and Trust C- are to be established upon the death of the first settlor to die. Robert, Benjamin, Margaret, Esther, Christine, Jacqueline, and Michael are named in the declaration of trust as beneficiaries of one or more of the subtrusts.
The declaration of trust includes the following no contest provision: "If any beneficiary under this declaration of trust shall attack or seek to impair or invalidate any of its provisions, or conspire with or voluntarily assist anyone attempting to do any of those things, in that event all gifts and interests given under this declaration of trust to that person shall be forfeited and shall augment proportionately the shares of the trust estate held for such beneficiaries as shall not have participated in such acts or proceedings." (Capitalization omitted.)
May died in 2004.
In 2011, King resigned as trustee of the Chui Trust and Robert and Margaret succeeded him as cotrustees.
In October 2012, Esther filed a petition in Los Angeles Superior Court case No. BP137413. Among other allegations, Esther alleged that Robert and Margaret improperly delegated responsibilities under the Chui Trust to Christine, who "improperly and illegally act[ed] as the sole fiduciary of the [Chui] Trust[ ]." Esther requested an accounting of the Chui Trust, the removal of Robert and Margaret as trustees, and the appointment of a trust company as trustee.
In 2013, Robert died and Benjamin (Robert's eldest son) was appointed to replace him as cotrustee of the Chui Trust with Margaret.
In 2014, King died.
In July 2016, Esther filed a petition under section 850 against Christine in her individual capacity and as the personal representative of Robert's estate in Los Angeles Superior Court, commencing case No. BP155345. She filed a first amended petition in the case in January 2017. Esther alleged that, after the death of May in 2004, "King was susceptible to undue influence" and eventually became incapacitated. By 2010, he "was suffering from severe vascular dementia." According to Esther, Christine and Robert "took advantage of [King's] vulnerability by besieging his assets with complicated and unnecessary transfers that were designed to hide the fact that Robert and/or Christine were stealing King's money." Robert and Christine allegedly wrongfully transferred approximately $10 million of King's assets to themselves. Esther sought, among other relief: an order that Christine "return the money [she] wrongfully misappropriated from the [Chui] Trust and King," a finding that Christine and Robert committed financial elder abuse of King, an order declaring that Christine predeceased King pursuant to section 259, and the imposition of a constructive trust on certain property. Esther did not seek to impair or invalidate any provision of the Chui Trust.
Also in July 2016, Benjamin, as cotrustee of the Chui Trust, filed a petition under section 850 in Los Angeles Superior Court case No. BP154245 against Christine in her individual capacity and as the personal representative of Robert's estate. Benjamin asserted claims for, among other claims, breach of fiduciary duty, financial elder abuse, and wrongful taking of trust property. The petition alleged that "[a]fter May's death, King experienced a stepwise decline in mental and physical ability that eventually led to profound vascular dementia." Robert and Christine allegedly misappropriated "significant sums" of "King's money" and, in administering the trust, committed waste and breached fiduciary and statutory duties. Benjamin sought: (1) an order requiring Christine "to disgorge . . . any and all assets wrongfully transferred out of the [Chui] Trust," (2) orders setting aside Robert's and Christine's unauthorized asset transfers, (3) the imposition of a constructive trust, (4) a declaration that Christine predeceased King under section 259, and (5) damages. Benjamin did not seek to impair or invalidate any provision of the Chui Trust.
In March 2018, Margaret joined Benjamin's action against Christine and the two, as cotrustees of the Chui Trust, filed a first amended petition realleging the causes of action Benjamin asserted in the original petition and seeking substantially the same remedies.
Trial in the litigation described above was to begin on May 14, 2018. That morning, Christine, Benjamin, Margaret, and Esther entered into a settlement agreement (the 2018 settlement), the terms of which were recited in open court.
The terms include Christine's waiver of rights to Trust A and her disclaimer of any rights she has as a beneficiary of the Chui Trust. Christine agreed to return certain personal property and to pay $3 million to the trust account of counsel for Benjamin. The parties further agreed that claims by Jacqueline and Michael can be brought prior to their reaching adulthood only by their guardian ad litem, Jackson Chen, and Christine and Benjamin each agreed to dismiss certain appeals. They agreed that all litigation between the parties shall be dismissed, and all parties agreed to waive their rights under Civil Code section 1542.
Related agreements, which we have previously referred to as the first guardian ad litem agreement (first GAL agreement) and the second guardian ad litem agreement (second GAL agreement) (Chui v. Chui (2022) 75 Cal.App.5th 873, 885-886, 888 (Chui I)), were subsequently reached among Jacqueline and Michael, through their guardian ad litem, and Benjamin, Margaret, and Esther. The court did not approve the first GAL agreement. Under the second GAL agreement, Jacqueline and Michael are to receive specified interests in trust property and money, and are thereafter "considered fully redeemed from the [Chui] Trust and will no longer continue to be beneficiaries of the [Chui] Trust." The parties expressly waived their rights under Civil Code section 1542.
Beginning in July 2018, Christine filed various motions and petitions challenging the validity and enforceability of the 2018 settlement and the agreement other parties reached with Jacqueline and Michael's guardian ad litem. In September 2018, over Christine's opposition, the trial court granted Benjamin's motion to enforce the 2018 settlement. In March 2020, the court approved the second GAL agreement.Christine, Jacqueline, and Michael appealed the court's March 2020 rulings to this court (the settlement appeal).
This litigation is summarized in two prior opinions from this court: Chui I, supra, 75 Cal.App.5th 873, and Chui v. Chui (2022) 86 Cal.App.5th 929.
In March 2022, we affirmed the order granting the motion to enforce the settlement and the order approving of the Second GAL agreement. (Chui I, supra, 75 Cal.App.5th at pp. 878, 906.)
B. Christine's Section 850 Petition and the Anti-SLAPP Motions
In February 2020, Christine filed a petition under section 850 alleging seven claims, including the disinheritance claim, against Benjamin, Margaret, and Esther. Under the disinheritance claim-the only claim relevant to this appeal- Christine sought an order declaring that Benjamin, Margaret, and Esther predeceased King because the litigation they had prosecuted prior to the entry into the 2018 settlement "triggered the no-contest provision" of the declaration of trust. Consequently, Christine alleged, they should "be disinherited."
According to the petition, Christine filed the petition in her individual capacity and, among other capacities, in her capacities as the parent of Jacqueline and Michael, the guardian of Jacqueline's and Michael's estates in Los Angeles Superior Court case No. BP147759, the guardian ad litem for Jacqueline and Michael in Los Angeles Superior Court case No. BP145642, as the trustee of the "Michael T. Chui Irrevocable Trust dated 8/12/2004, the Trustor of Jacqueline T. Chui Irrevocable Trust dated 8/12/2004, the Trustee of Robert Chui's Separate Property Trust, and the Executor of the estate in the matter of In re Estate of Robert Tak Kwong Chui (Los Angeles Superior Court [c]ase No. BP143884), to which [Jacqueline and Michael] are beneficiaries."
Esther, Benjamin, and Margaret filed anti-SLAPP motions on April 7, 2020, April 24, 2020, and April 28, 2020, respectively. Esther sought an order striking a claim asserting tortious interference with expected inheritance, as well as the disinheritance claim. Benjamin and Margaret sought an order striking each of Christine's seven claims. Each of the moving parties stated that they would seek an award of attorney fees "through a separate noticed motion" in the event the court granted their anti-SLAPP motions.
Benjamin also filed a demurrer to each cause of action alleged in Christine's section 850 petition on the grounds, among others, that Christine did not have standing to assert the claims and had released the claims pursuant to the 2018 settlement.
In their anti-SLAPP motions, Esther, Benjamin, and Margaret asserted that the disinheritance claim arose from protected activity-specifically, their pre-settlement litigation against Christine-and Christine cannot establish a probability of prevailing on the claim because: (1) the litigation privilege bars the claim; (2) as a result of the 2018 settlement, Christine lacks standing to assert the claim; (3) the claim is barred by a statute of limitations or the doctrine of laches; and (4) the claim is without merit. Christine filed opposition to the motions.
On August 10, 2020, Christine filed an ex parte application to stay the anti-SLAPP motions pending resolution of the settlement appeal. Benjamin opposed the application. The court set a hearing on the application for September 16, 2020. On August 18, 2020, Christine filed an ex parte application to continue the hearing on the anti-SLAPP motions, which Benjamin opposed. The court ultimately denied both applications.
On September 25, 2020, the court granted the anti-SLAPP motions as to the disinheritance claim and otherwise denied the motions. The court explained that Christine's disinheritance claim lacked the minimal merit necessary to avoid dismissal because none of the petitions Esther, Benjamin, and Margaret filed was "a direct contest" of the trust. The order is reflected in minute orders issued on that date, each stating that the moving party is "to prepare the order after hearing." (Capitalization omitted.)
The court also sustained Benjamin's demurrer to each cause of action. The demurrer to Christine's cause of action for tortious interference of expected inheritance was sustained without leave to amend. The demurrer to the remaining causes of action was sustained based on Christine's lack of standing. As to these causes of action, the court granted Christine leave to amend "within thirty (30) days after the Court of Appeal issues the remittitur" after disposition of the settlement appeal.
On November 2, 2020, the court filed a formal written order granting Benjamin's anti-SLAPP motion as to the disinheritance claim, and denying the motion as to the other causes of action. It does not appear from our record that Benjamin served a notice of entry of the order.
On February 1, 2021, the court filed a formal written order granting Esther's anti-SLAPP motion as to the fifth cause of action, and denied the motions as to the tortious interference cause of action. Esther served notice of entry of the court's order on February 2, 2021.
On April 2, 2021, Christine filed notices of appeal from the written orders granting Benjamin's and Esther's anti-SLAPP motions and from the minute order granting Margaret's anti-SLAPP motion. We assigned case No. B312525 to the appeals.
The appeal from the order granting Benjamin's anti-SLAPP order is timely under California Rules of Court, rule 8.104(a)(1)(B). The appeal from the order granting Esther's anti-SLAPP motion is timely under rule 8.104(a)(1)(C) of the California Rules of Court.
C. The Attorney Fees Motions
On March 8, 2021, Esther filed a motion for attorney fees as the prevailing party on her anti-SLAPP motion. She sought $38,464 in fees and $120 in costs. On April 27, 2021, Benjamin filed a motion for attorney fees as the prevailing party on his anti-SLAPP motion. He requested $211,927.24.Christine filed oppositions to each.
It does not appear from our record that Margaret filed a motion for attorney fees with respect to her anti-SLAPP motion.
In support of Esther's motion, Justin Gold, the "partner in charge" of Esther's representation, submitted a declaration stating that he billed 142.2 hours of time on the motions at a "discounted hourly rate" of $455 per hour. An associate attorney billed 12.3 hours at the rate of $375 per hour. Esther's counsel submitted billing records for the time, stating that the listed transactions are "exclusively related to the anti-SLAPP motion." Esther's counsel explained that Esther "focused almost the entirety of her motion (with the exception of four paragraphs) on the [disinheritance] cause of action." Drafting the anti-SLAPP motions was made difficult, counsel explained, because Christine's section 850 petition did not specify the particular pleadings that Esther filed that allegedly violated the no-contest provision of the King trust. Consequently, counsel had "to scour nearly eight years of files to confirm that no direct contest was ever filed."
Benjamin's motion for fees was supported by declarations of two attorneys, Alex Weingarten and Eric Bakewell, partners in the Venable law firm. Weingarten explained that work on Benjamin's anti-SLAPP motion was performed by himself, Bakewell, and two Venable associates. Weingarten billed at the rate of $945 per hour for his time for work on the anti-SLAPP motion and at the rate of $990 per hour for his work on the motion for fees. Bakewell billed at the rate of $765 per hour for his time for work on the anti-SLAPP motion and at the rate of $800 per hour for his work on the motion for fees. The associates billed their time at rates ranging from $690 per hour to $725 per hour. According to Weingarten, these rates are "consistent with prevailing market rates."
Venable billed 237 hours for work in connection with the anti-SLAPP motion, including 61 hours for work in connection with the opposition to Christine's ex parte applications to stay and continue the hearing on the anti-SLAPP motions. The firm billed an additional 26 hours in connection with the fee motion. Bakewell's declaration details the work performed by the attorneys in connection with the anti-SLAPP motion, the ex parte applications, and the fee motion. According to him, "there was no unnecessary duplication of work by" the Venable attorneys. Weingarten, Bakewell, and the two associates performed 38.7 hours, 96.8 hours, and 145.8 hours, respectively.
In her oppositions, Christine argued, among other arguments, that Benjamin's and Esther's attorneys failed to adequately document their hours, the amount of time billed was unreasonable, the distribution of hours among partners and associations was unreasonable, the amount of fees should be reduced because the motions were only partially successful, and Benjamin should not be awarded fees incurred to oppose her ex parte applications to stay and continue the anti-SLAPP motions. Christine supported her oppositions in part with a declaration from an expert on the subject of law firm billings. The expert reviewed the evidence supporting Benjamin's fee motion and opined that "the fees and costs . . . appear excessive."
The court heard argument on the motions on July 13, 2021. The court granted Esther's fee motion and awarded her the sum she requested: $38,464 in attorney fees and $120 in costs. The court found that the rates charged by Esther's attorneys and the hours billed in connection with her motion were reasonable. Indeed, the fees "were actually understated and discounted." Therefore, the court did not discount the fees further, as Christine had sought. Although Esther's success on her anti-SLAPP motion was partial, the court stated that the issue on which she did not prevail "was just a small part of the fees incurred." The court did not, therefore, discount the award on that basis.
The court granted Benjamin's fee motion, awarding him $105,952.50 in attorney fees-approximately half of the amount of fees he sought-and $2,328.24 in costs. The court found that the rates charged by Benjamin's attorneys "were a bit high," and reduced the rates in making its calculation. The court noted that Christine's section 850 petition "was very complex," which made the anti-SLAPP motion "a very complicated motion to bring" and "warrant[ed] a significant expenditure of time and effort." Nevertheless, the court found that the amount of hours billed by Benjamin's attorneys was "not reasonable under the circumstances," and reduced the time accordingly. The court further discounted the amount of Benjamin's request because he "did not prevail on all the claims. In fact, [he] technically prevailed in one out of the seven." The court found, however, that the claims and arguments "were substantially intertwined" and therefore reduced the fee award to reflect the "limited success" by only 10 percent. The court rejected Christine's argument that Benjamin should not be awarded fees for opposing her ex parte applications to stay and continue the anti-SLAPP hearing. The applications, the court explained, "were really part and parcel of the anti-SLAPP motion" and thus "fall within the fees that can be requested and awarded."
The court entered written orders granting the fee motions on August 30, 2021. Benjamin and Esther served notice of entry of the orders on August 31, 2021.
On October 14, 2021, Christine filed notices of appeal from the orders granting Esther's and Benjamin's anti-SLAPP motions and granting their motion for fees. We assigned case No. B316429 to these appeals.
On May 3, 2022, we consolidated the appeals in case Nos. B312525 and B316429 for purposes of briefing, argument, and decision.
D. The Premature Appeals and the Curative Efforts
Prior to oral argument, we informed the parties that we were considering dismissing the appeal from the order granting Margaret's anti-SLAPP motion because the minute order from which the appeal was taken directs Margaret to prepare a written order, and no written order has been filed. We further informed the parties that we are considering dismissing the appeals from the attorney fees motions because the orders granting the motions are interlocutory and nonappealable. (See Doe v. Luster (2006) 145 Cal.App.4th 139, 150 (Doe).)
During oral argument on July 25, 2023, Margaret's counsel explained that the failure to obtain a written order regarding her anti-SLAPP motion was inadvertent and requested that we nevertheless decide the appeal in the interest of judicial economy. Benjamin's counsel asserted that the orders granting the fee motions are appealable because the trial court's order sustaining Benjamin's demurrer disposed of the entire case. Counsel explained that Christine had been given leave to amend her section 850 petition within 30 days of the issuance of our remittitur in the settlement appeal, but she failed to do so.Counsel conceded, however, that the court had not entered a judgment in the matter.
Our remittitur in the settlement appeal issued on July 14, 2022. (Chui v. Chi (Mar. 2, 2022, B306918).)
On July 28, 2023, we requested that the parties obtain from the trial court and file with this court within 30 days (1) a written appealable order disposing of Margaret's anti-SLAPP motion; and (2) a judgment or other order finally disposing of all causes of action asserted in Christine's section 850 petition. We further stated that if such orders or judgment are filed, we would "determine whether to deem the premature notices of appeal to be from the orders and judgment and, if so, address the merits of the appeals."
On August 23, 2023, Benjamin filed with this court a letter from his counsel attaching an order from the superior court dated August 21, 2023, entered upon Benjamin's ex parte application. The order addressed Margaret's anti-SLAPP motion, the adjudication of Christine's section 850 petition, and the award of attorney fees to Benjamin.
With respect to Margaret's anti-SLAPP motion, the trial court ordered that the motion is granted on Christine's disinheritance cause of action and denied as to the remaining causes of action. Regarding Christine's section 850 petition, the court dismissed the petition with prejudice and entered judgment in favor of Benjamin, Margaret, and Esther, and against Christine. The order further states that Benjamin is awarded $108,280.74 (comprising $105,952.50 in attorney fees and $2,328.24 in costs) pursuant to Code of Civil Procedure section 425.16.
On September 29, 2023, we issued an order taking judicial notice of the court's August 21, 2023 order.
In our September 29, 2023 order we also vacated submission of this cause to allow us to consider: (1) a document Christine filed on August 31, 2023, styled as a "reply" to Benjamin's counsel's August 23, 2023 letter and the trial court's August 21, 2023 order; and (2) a document Benjamin filed on September 29, 2023, in response to Christine's reply. In Christine's reply, she requested that we "continue the ruling on the appeal" pending further action by the trial court, which we denied. The cause was resubmitted on September 29, 2023.
DISCUSSION
A. Appealability of Orders Granting Anti-SLAPP Motions
An order granting an anti-SLAPP motion is appealable. (Code Civ. Proc., §§ 425.16, subd. (i), 904.1, subd. (a)(13).) When, however, a court issues a minute order directing a party to prepare a written order for the court, "entry of the order does not occur until the signed formal order is filed." (Barak v. The Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 658-659; see Cal. Rules of Court, rule 8.104. (c)(2) ["if the minute order directs that a written order be prepared, the entry date is the date the signed order is filed"].) In that situation, "an appeal does not lie from the minute order but from the written order." (Davis v. Taliaferro (1963) 218 Cal.App.2d 120, 123; see Herrscher v. Herrscher (1953) 41 Cal.2d 300, 306 [when the court directs a written order be prepared and no written order is filed, "the minute order is not appealable"].)
Here, the court's separate minute orders granting the anti-SLAPP orders directed each moving party-Esther, Benjamin, and Margaret-"to prepare the order after hearing." (Capitalization omitted.) Esther and Benjamin responded by submitting proposed written orders, which the court thereafter signed and entered. These orders are appealable, and Christine's notices of appeal from these orders are timely.
Margaret did not submit a proposed order. Christine nevertheless filed a notice of appeal from the minute order addressing Margaret's motion. Because the order was unappealable, we would ordinarily be compelled to dismiss the appeal for lack of jurisdiction. (See Estate of Pearsons (1897) 119 Cal. 27, 28 [premature appeal vests court with no jurisdiction of the cause and must be dismissed].) Although, as Christine indicated in her civil case information statement filed in this court, courts may treat a premature notice of appeal as being filed upon the subsequent entry of an appealable order or judgment (Heshejin v. Rostami (2020) 54 Cal.App.5th 984, 991; In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 906; Cal. Rules of Court, rule 8.104(d)(1)), no such order or judgment had been entered prior to oral argument in this case.
Upon our request, Benjamin obtained from the trial court and submitted to this court a formal written order from the trial court granting Margaret's anti-SLAPP motion as to the disinheritance cause of action and denying her motion as to the six other causes of action in Christine's section 850 petition. The parties have fully briefed and argued the merits of the appeal. Accordingly, in the interest of judicial economy and pursuant to the authorities cited above, we deem Christine's premature appeal from the order granting in part Margaret's anti-SLAPP motion to be taken from the court's August 21, 2023 order.
B. The Merits of Anti-SLAPP Rulings
The anti-SLAPP statute is "designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern. [Citations.] To that end, the statute authorizes a special motion to strike a claim 'arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.' (§ 425.16, subd. (b)(1).)" (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883-884.) Such acts are referred to in anti-SLAPP parlance as "protected activity." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park).) Protected activity includes litigation activity, "such as the filing, funding, and prosecution of a civil action." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)
When considering whether to strike a claim, courts undertake a two-prong analysis. "First, the defendant must establish that the challenged claim arises from activity protected by [Code of Civil Procedure] section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) "If the plaintiff cannot make this showing, the court will strike the claim." (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.)
Here, Benjamin, Esther, and Margaret met their burden of establishing that Christine's disinheritance claim arises out of protected activity. Christine's disinheritance claim is based on the allegation that the defendants "triggered the no-contest provision" of the Chui Trust "[by] prosecuting eight years of fraudulent litigation against Robert[, Christine, Jacqueline, and Michael] to thwart the [settlors'] intent." Although Christine does not identify in her petition the particular pleadings the defendants filed to prosecute the "eight years" of litigation, she does so on appeal; they are the petitions the respondents filed in Los Angeles Superior Court case Nos. BP155345, and BP154245, summarized above. The filing of these petitions and the ensuing litigation constitute protected activity under the anti-SLAPP statute. (See Urick v. Urick (2017) 15 Cal.App.5th 1182, 1186 (Urick) [petitions under the Probate Code to enforce no contest clause "necessarily satisfy the first step of the anti-SLAPP analysis, because they are based on protected petitioning activity"]; accord, Key v. Tyler (2019) 34 Cal.App.5th 505, 517-518.)
Christine attempts to avoid this conclusion by arguing that she did not assert her claim "because respondents brought a lawsuit against her; instead, she sought respondents' disinheritance because of their shockingly egregious challenge of the trust provisions by initiating an eight[-]year frivolous litigation to thwart their intent and trust amendments of the trust." (Capitalization omitted.) The attempt fails; the commencement and pursuit of litigation constitutes protected activity regardless of how "frivolous" or "shockingly egregious" it may appear to the defendant.
Christine further states in her opening brief that the allegations in her disinheritance claim "were based on unprotected activity" because "the wrongful breach the trust to the detriment of the beneficiaries and in contradiction of the Trustors' intent." This statement's unintelligibility aside, it fails to explain how the claim arises from activity other than the protective activity of the defendants' litigation. We reject Christine's further conclusionary assertion that the claim is "based on the wrongful activity which does not trigger anti-SLAPP protection," because Christine does not reference any allegation of such "wrongful activity."
Christine further contends that, if her disinheritance claim arises from protected activity, it should come within a "public interest" exception to the anti-SLAPP statute. (See Code Civ. Proc., § 425.17.) In Urick, the court rejected a similar argument, stating that "[t]here may be valid reasons to exempt enforcement of no contest clauses from the anti-SLAPP statute, but if so, it is for the Legislature to create an exception." (Urick, supra, 15 Cal.App.5th at p. 1195.) Indeed, as Christine points out, a bill was introduced in the California Senate in 2021 that, if enacted, would have exempted from the anti-SLAPP law "an action to enforce a no contest clause contained in a will, trust, or other instrument." (Sen. Bill No. 329, as introduced Feb. 5, 2021 (2021-2022 Reg. Sess.) § 1.) The Senate bill, however, was never enacted, and it thus provides no support for Christine's argument.
In the second step of the anti-SLAPP analysis, Christine has the burden of showing that her claim has "at least 'minimal merit.'" (Park, supra, 2 Cal.5th at p. 1061.) We agree with Benjamin, Esther, and Margaret that Christine cannot make this showing for at least two reasons: (1) As a result of the 2018 settlement and the court's approval of the second GAL agreement, Christine lacks standing to pursue the disinheritance claim; and (2) The disinheritance claim lacks merit because the defendants did not assert a claim triggering the no contest provision.
In the 2018 settlement, Christine waived any rights she had to Trust A-the only subtrust in which she previously held a beneficial interest-and further disclaimed any rights she had as a beneficiary of the Chui Trust. The parties also agreed to dismiss all litigation between them and waive their rights under Civil Code section 1542, which provides that a "general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party." Here, the litigation the defendants pursued that Christine alleges triggered the no contest provision had been pursued prior to the entry into the 2018 settlement and is plainly encompassed within the scope of the settlement and Christine's waiver of her rights under Civil Code section 1542. Christine asserts that she should be able to "invalidate" the Civil Code section 1542 waiver because she was allegedly induced to enter into the agreement by the defendants' fraud. The undeveloped argument, however, was not raised below or on appeal until it is asserted in Christine's reply brief. We therefore decline to consider it. (See California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1050; Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295.)
Having relinquished all interest in the Chui Trust and waived her rights under Civil Code section 1542, Christine lacks standing to assert her disinheritance claim. Moreover, to the extent she asserted standing as a parent or fiduciary of Jacqueline or Michael, the claim is without merit because she agreed that any claims brought on behalf of Jacqueline and Michael while they were minors could be brought only by their guardian ad litem, Jackson Chen.
Even if Christine has standing to pursue the enforcement of the no contest provision in the declaration of trust, she has not shown the requisite probability of prevailing on the claim. In the trial court, Christine asserted that the no contest provision was triggered because the defendants' litigation constituted a" 'direct' contest" brought without probable cause within the meaning of sections 21310, subdivision (b) and 21311, subdivision (a)(1). A "direct contest," for this purpose, is "a contest that alleges the invalidity of a protected instrument or one or more of its terms, based on one or more of [specified] grounds," including forgery, lack of due execution, lack of capacity, menace, duress, fraud, or undue influence. (§ 21310, subd. (b); see Estate of Dayan (2016) 5 Cal.App.5th 29, 40 ["[a] direct contest must allege a[n] invalidity of a protected instrument"].) As Benjamin and Esther pointed out, however, in their litigation against Christine they sought the return of money and property Christine allegedly misappropriated from King and the Chui Trust; they did not allege the invalidity of any provision of the declaration of trust in any of the pleadings that Christine alleged triggered the no contest provision.
On appeal, Christine refers generally to the law concerning direct contests, but does not appear to reassert the argument she made below. Instead, she contends that her "appeal concerns the application of . . . section 21311, subdivision (a)(2)," which allows enforcement of a no contest clause where a person "challenge[s] a transfer of property on the grounds that it was not the transferor's property at the time of the transfer." (§ 21311, subd. (a)(2).) As our Supreme Court explained, this provision may be properly included in a will or trust to "operate as a 'forced election' in order to avoid ownership disputes." (Donkin v. Donkin (2013) 58 Cal.4th 412, 425 (Donkin).) For example, a surviving spouse who is given some property under the decedent spouse's will may believe that other property transferred by the decedent spouse to a third person in the will actually belongs to the surviving spouse; that is, the property transferred by the will to the third person is not the decedent's property to bequeath. If the will includes a no contest clause that applies under these circumstances, the surviving spouse is forced to make an election: (1) accept the gift provided for in the will and forgo any challenge to the decedent's gift to the third person; or (2) contest the gift to the third person and, by operation of the no contest clause, abandon the gift made to the surviving spouse.
As section 21311, subdivision (a)(2) provides, a no contest provision "shall only be enforced under [that] paragraph if the no contest clause expressly provides for that application." Thus, where the terms of no contest clauses in a trust "do not expressly provide that the clauses apply to pleadings that challenge a transfer of property on the ground that it was not the transferor's property at the time of the transfer," "the no contest clauses cannot be enforced against such claims." (Donkin, supra, 58 Cal.4th at p. 432.)
Here, the no contest provision in the declaration of trust does not provide for its application to the kind of contest described in section 21311, subdivision (a)(2). Therefore, even if this argument had been made below and preserved on appeal, it is without merit. (See Donkin, supra, 58 Cal.4th at p. 432.)
For the foregoing reasons, the trial court did not err in granting the anti-SLAPP motions as to the disinheritance cause of action.
C. Appealability of Orders Granting the Attorney Fees Motions
Christine contends that, if we do not reverse the orders granting the anti-SLAPP motions, we should reverse the court's award of attorney fees to Esther and Benjamin.
We must first determine whether we have jurisdiction to review the challenged orders.
"A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment." (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) Generally, "[a] trial court's order is appealable when it is made so by statute." (Ibid.)
Christine asserts that the orders granting the motions for attorney fees are appealable under Code of Civil Procedure sections 425.16, subdivision (i), and 904.1, subdivision (a)(13). These provisions permit the interlocutory appeal of an order granting or denying an anti-SLAPP motion (Code Civ. Proc., § 425.16, subd. (i) ["[a]n order granting or denying a special motion to strike shall be appealable under [Code Civil Procedure] [s]ection 904.1"]; Code Civ. Proc., § 904.1, subd. (a)(13) [party may take an appeal "[f]rom an order granting or denying a special motion to strike under [Code Civil Procedure] [s]ection 425.16"]). They do not, however, authorize an appeal from an interlocutory order granting an award of attorney fees to a party prevailing on an anti-SLAPP motion. (Doe, supra, 145 Cal.App.4th at pp. 145-146; City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 781.)
A defendant who files an anti-SLAPP motion has the option to move for an award of attorney fees incurred in connection with the motion at different times. The defendant may: (1) request an award of attorney fees "simultaneously with litigating" the anti-SLAPP motion, (2) "by a subsequent noticed motion," or (3) "as part of a cost memorandum at the conclusion of the litigation." (Melbostad v. Fisher (2008) 165 Cal.App.4th 987, 992.) Here, Esther and Benjamin proceeded under the second method: They expressly stated in their motions that they were not moving for an award of fees at that time, and they filed their motions for attorney fees after the court granted their motions in part and before the court's conclusion of the litigation. In this situation, the order is nonappealable, and a challenge to the order must await the entry of a final appealable order or judgment. (See Doe, supra, 145 Cal.App.4th at p. 150; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2022) § 2:135.13a.)
As with Christine's premature appeal from the order granting in part Margaret's anti-SLAPP motion, discussed above, we can deem her premature notices of appeal from the orders granting Esther's and Benjamin's attorney fees motions as being filed as of the date an appealable judgment is entered. According to Benjamin's counsel, the court had sustained demurrers to the causes of action that had not been stricken as a SLAPP, and that the time within which Christine could amend the petition had expired. If so, it would be proper for the trial court to enter judgment of dismissal upon the defendant's ex parte application. (Code Civ. Proc., § 581, subd. (f)(2); Cal. Rules of Court, rule 3.1320(h).) Pursuant to our request, Benjamin applied to the trial court for a judgment disposing of Christine's section 850 petition, which the court issued in its August 21, 2023 order. The parties have fully briefed and argued the merits of the appeals. Accordingly, in the interest of judicial economy, we deem Christine's premature appeals from the orders granting Esther's and Benjamin's attorney fees motions to be taken from the court's August 21, 2023 order.
In deeming Christine's notices of appeal from the attorney fees motions to be from the judgment entered on August 21, 2023, we do so without prejudice to Christine's rights to appeal from the August 21, 2023 judgment and to challenge the judgment and any intermediate rulings other than the orders that are the subjects of this consolidated appeal.
D. The Merits of the Attorney Fees Orders
Defendants who prevail on an anti-SLAPP motion are statutorily entitled to recover their attorney fees and costs. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 (Ketchum); Code Civ. Proc., § 426.16, subd. (c).) The defendant is entitled to an award even if the motion is only partially successful. (Computer Xpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) The award should include reasonable fees for services "for all proceedings . . . directly related to the special motion to strike." (Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 92-93 (Jackson).)
In determining the reasonableness of a fee request, the court may consider various factors, including the nature of the litigation, the complexity of the issues, the experience and expertise of counsel, the amount of time involved, the extent to which the defendant was successful, and whether fees are sought for unnecessary, inefficient, or duplicative work. (Ketchum, supra, 24 Cal.4th at p. 1132; Frym v. 601 Main Street LLC (2022) 82 Cal.App.5th 613, 621.)
We review the court's ruling for an abuse of discretion. (Marshall v. Webster (2020) 54 Cal.App.5th 275, 285.) Because the trial court is most familiar with the litigation and in the best position to determine the value of the legal services rendered in the case, we will not disturb the court's decision to award attorney fees unless we are"' "convinced that [decision] is clearly wrong." '" (Ketchum, supra, 24 Cal.4th at p. 1132; accord, 569 E. County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 433.) We presume the trial court's ruling is correct, and the appellant has the burden of affirmatively establishing an abuse of discretion. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; City of Rocklin v. Legacy Family Adventures-Rocklin, LLC (2022) 86 Cal.App.5th 713, 727.) Here, Judge Gus May was familiar with this litigation and decided the anti-SLAPP motions upon which the fee motions were based. Our record, including the transcript of the hearing on the fee motions, shows that the court read and considered the evidence submitted in support of and in opposition to the fee motions and carefully considered the arguments of counsel at the hearing on the motion. Our review of the record does not establish an abuse of discretion, and Christine has failed to show that the court's ruling is clearly wrong.
Christine argues that the records submitted in support of the motion show that the hours spent by Benjamin's and Esther's attorneys were padded, improperly distributed among the law firms' attorneys, and unreasonable. These arguments were made to the trial court and the court's rejection of them does not constitute an abuse of discretion.
Christine contends that Benjamin failed to demonstrate that the rates they charged "are the prevailing rate" for "attorneys of 'comparable skill, expertise, and stature.'" (Quoting Serrano v. Unruh (1982) 32 Cal.3d 621, 625.) Christine is referring to the "lodestar adjustment method" by which the court determines and adjusts a "lodestar figure, based on the 'careful compilation of the time spent and reasonable hourly compensation for each attorney . . . involved in the presentation of the case.'" (Ketchum, supra, 24 Cal.4th at p. 1131.) Although the "reasonable hourly rate is that prevailing in the community for similar work" (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095), expert testimony is not required to establish that rate. (Id. at p. 1096.) "[S]ufficient evidence to support an attorney fee award may include '[d]eclarations of counsel setting forth the reasonable hourly rate, the number of hours worked and the tasks performed.'" (Cruz v. Fusion Buffet, Inc. (2020) 57 Cal.App.5th 221, 237.) Indeed, in ascertaining the reasonable hourly rate, "[t]he court may rely on its own knowledge and familiarity with the legal market." (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009; accord, Kerkeles v. City of San Jose (2015) 243 Cal.App.4th 88, 105.)
Here, in his declaration supporting Benjamin's fee motion, Weingarten stated that the rates the Venable firm charged for work in connection with Benjamin's anti-SLAPP motion "are reasonable and consistent with prevailing market rates." Although Christine argued that the rates were excessive, she did not object to the admissibility of this evidence.
The court, in explaining its ruling, stated that the reduced rates it used in calculating the award on Benjamin's fee motion were "based on [the court's] experience on the bench . . . and what [the court has] been seeing in the probate litigation context." Thus, although the court did not use the term, "lodestar," in its analysis, it is apparent from the record that the court applied the lodestar adjustment method described by our Supreme Court.
Christine further contends that Benjamin should not be awarded fees for the Venable firm's work successfully opposing her ex parte applications to stay and continue the anti-SLAPP motions. The court, however, could reasonably conclude, as it did, that the ex parte applications were "part and parcel of the anti-SLAPP motion[s]," and thus recoverable as fees incurred for work "directly related" to the motions. (Jackson, supra, 179 Cal.App.4th at pp. 92-93.) Christine cites to no apposite authority to the contrary. The court could also reasonably reject, as it implicitly did, the expert opinion evidence Christine submitted in opposition to Benjamin's motion.
Christine next contends that the court should have reduced the amount of the fees based on counsel's "limited success" on the motions. The court expressly considered this factor and on that basis reduced Benjamin's award by 10 percent. The court acknowledged that Benjamin had moved to strike all seven of Christine's causes of action and was successful on only one, but explained that it was persuaded by Benjamin's counsel's argument at the hearing that the causes of action were "inextricably intertwined" and "there was really no way of separating out any of [the work]." Thus, the work "required to address all the causes of action" was "virtually the same amount" as the work needed to address the disinheritance cause of action. We cannot say that the court abused its discretion by accepting this point.
Christine also contends that the Venable firm's billing records reveal "clear evidence of improper billing." Specifically, she contends that a Venable attorney billed 40.8 hours of time during a 35-hour period. She cites, however, only to the portion of the transcript of the hearing at which this argument was made and rejected by the court. She does not cite to any billing records or other evidence to support the claim. Because the point is not supported by apposite citation to the record, we reject it.
Christine has not met her burden on appeal of showing that the court abused its discretion in granting Esther's and Benjamin's motions for fees.
DISPOSITION
The orders granting Benjamin's, Esther's, and Margaret's anti-SLAPP motions are affirmed. The orders granting Benjamin's and Esther's motions for attorney fees and costs are affirmed. Benjamin, Esther, and Margaret are awarded their costs on appeal.
We concur: CHANEY, J. BENDIX, J.