Opinion
A149403
05-22-2017
LAURIE MEYERS, Cross-complainant and Respondent, v. SUSAN MEYERS, Cross-defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCV-257264)
In this dispute between beneficiaries of a trust, appellant Susan Meyers appeals the trial court's order denying her anti-SLAPP motion to strike a cross-petition filed by respondent Laurie Meyers. We affirm.
For convenience, we will refer to the parties by their first names. No disrespect is intended.
FACTUAL BACKGROUND
The 1999 Trust
Susan and Laurie are sisters. In 1991, their parents (hereafter, Mother and Father) established a trust, which they amended and replaced in its entirety in 1999. The parties refer to the 1999 amendment as the "First Amendment"; for clarity and because the 1991 trust is not at issue in this case, we will refer to the 1999 amendment as the "1999 Trust." The 1999 Trust provided Mother and Father were co-trustees until the death or incapacity of one of them, at which point the other would serve as the sole trustee and "shall have the absolute right to amend or revoke [the 1999 Trust], in whole or in part, at any time except as to any part which is made [i]rrevocable." Upon the death or incapacity of the surviving trustor, Laurie and Susan would serve as successor co-trustees.
The 1999 Trust provided that upon the death of the first trustor to die, the trust shall be divided into two trusts, Trust A and Trust B, each for the benefit of the surviving trustor. Trust A shall contain the surviving trustor's separate property and community property interest. The surviving trustor was to allocate to Trust B "property not less than that in value which will be needed to increase the Deceased Trustor's taxable estate to the largest amount that will not result in a federal estate tax being imposed on the Deceased Trustor's estate . . . , with the actual value and asset selection at the election of the Surviving Trustor . . . ." The 1999 Trust provided that Trust B "shall become [i]rrevocable."
The Trust B provisions in the 1999 Trust included a limited power of appointment: "The Surviving Trustor shall have a limited power of appointment during his or her life or on his or her death to appoint to such persons, . . . in the manner in which the Surviving Trustor shall exclusively select the Trust Estate of Trust 'B'. The Surviving Trustor shall make the appointment by either a gift during his or her life or a valid living trust or will, either of which specifically refers to this limited power of appointment. The Surviving Trustor shall not exercise this power in favor of his or her creditors, his or her estate, or the creditors of his or her estate." When the surviving trustor dies, Trust B shall terminate and the balance of the Trust B estate shall be split evenly between Laurie and Susan.
A "power of appointment" is "the power to dispose of property" in a trust. (Giammarrusco v. Simon (2009) 171 Cal.App.4th 1586, 1595 (Giammarrusco).) "A power of appointment is 'general' if it is exercisable 'in favor of anyone at all, including oneself or one's own estate.' [Citations.] If a power of appointment is not 'general,' it is 'limited.' [Citation.] A limited power of appointment is exercisable only in favor of 'the person or class specified in the instrument creating the power.' " (Ibid.)
The 1999 Trust also included the following "no contest" provision: "In the event any person and/or any beneficiary under our Trust . . . shall seek to obtain an adjudication in any proceeding in any Court that our Trust or any of its provisions . . . is void, or seek otherwise to void, nullify, or set aside our Trust or any of its provisions, then the right of that person to take any interest given to said person by our Trust shall be determined as it would have had that person predeceased the execution of our DECLARATION OF TRUST without surviving issue."
A "no contest clause in a trust instrument 'essentially acts as a disinheritance device, i.e., if a beneficiary contests or seeks to impair or invalidate the trust instrument or its provisions, the beneficiary will be disinherited and thus may not take the gift or devise provided under the instrument.' " (Donkin v. Donkin (2013) 58 Cal.4th 412, 422 (Donkin).)
Events Following the 1999 Trust
Father died in 2000. Pursuant to the terms of the 1999 Trust, the trust was divided into Trust A and Trust B. Mother transferred certain real property (the Property), in addition to other property, to Trust B.
Subsequently, Susan's relationship with Mother and Laurie deteriorated and they became estranged.
The 2003 Amendment
In 2003, Mother executed an amendment to the 1999 Trust, revoking all of its provisions except the irrevocable Trust B provisions. The parties refer to this as the "Third Amendment"; for clarity and because the second amendment is not relevant to this appeal, we will refer to this amendment as the "2003 Amendment." The 2003 Amendment expressly invoked the 1999 Trust's limited power of appointment provision regarding the Trust B estate and provided that, upon Mother's death, the Property will be appointed to Laurie. The 2003 Amendment provided that the remaining balance of property in Trust B shall be distributed evenly between Laurie and Susan.
The 2003 Amendment also named Laurie the sole successor trustee of Trusts A and B in the event of Mother's death or incapacity. Like the 1999 Trust, the 2003 Amendment included a no contest provision.
Events Following the 2003 Amendment
In the years following the 2003 Amendment, Mother lost the capacity to serve as a trustee. In 2010, Laurie, acting as the successor trustee of Trust B, sold the Property. Mother died in 2012. According to Susan's petition, she did not learn of Mother's death until 2015.
PROCEDURAL BACKGROUND
Susan's Trust Petition
In June 2015, Susan filed a trust petition asserting various causes of action relating to Trust B and seeking money damages from Laurie. One cause of action is to determine the construction of a trust instrument (Prob. Code, § 17200, subd. (b)(1)). This cause of action alleges that the 1999 Trust's limited power of appointment provision is inconsistent with another provision, such that "[r]ead as a whole, the [1999 Trust] evidences [Father's] intent that [Trust B] be distributed according to terms that both he and [Mother] agreed to during their joint lifetimes; [Mother's] invocation of [the limited power of appointment provision] cannot be allowed to overcome [Father's] testamentary intent after his passing."
All undesignated section references are to the Probate Code.
The trust petition also challenges the 2003 Amendment's designation of Laurie as sole successor trustee of Trust B. The petition alleges that because Trust B was irrevocable, Mother lacked the authority to change the successor trustee provisions relating to that trust. Thus, the successor trustee provisions in the 1999 Trust, naming Laurie and Susan as successor co-trustees, were in effect upon Mother's incapacity, and Laurie impermissibly acted unilaterally in selling the Property.
Susan also filed a quiet title action against the purchasers of the Property. The two petitions were consolidated in the trial court.
Laurie's Cross-Petition (the No Contest Petition)
In May 2016, Laurie filed a cross-petition (hereafter, the No Contest Petition). The sole cause of action is entitled: "For Determination that Susan's trust and quiet title actions violate the 'no contest' clause of the Trust and were prosecuted without probable cause. (See Secs. 21310-21315.)"
The No Contest Petition identifies the no contest provisions of both the 1999 Trust and the 2003 Amendment. It alleges, "Susan's quiet title and trust actions constitute a 'trust contest' within the meaning of Sections 21310-21312," and the court "should find that Susan's actions violate the 'no contest' clause of the Trust and were brought without probable cause, such that Susan is deemed to have predeceased the Trustors and therefore she has no rights or interests in the Trust."
Susan's Anti-SLAPP Motion
Susan filed a motion to strike the No Contest Petition pursuant to the anti-SLAPP law (Code Civ. Proc., § 425.16), arguing (1) it arose from protected activity, Susan's lawsuits, and (2) has no probability of prevailing. With respect to the probability of prevailing, Susan argued that under the Probate Code's provisions regarding no contest enforcement actions, no contest provisions can only be enforced against certain enumerated contests, such as claims of fraud and duress. Susan contended none of the claims in her petitions fell within this limited list and the No Contest Petition does not allege otherwise; therefore Laurie could not prevail on the No Contest Petition.
Laurie's opposition noted the Probate Code's provisions only governed no contest enforcement actions involving instruments that became irrevocable after January 1, 2001. She argued the Probate Code therefore did not apply to the Trust B provisions of the 1999 Trust, which became irrevocable when Father died in 2000, and that Susan's actions constituted a contest under the applicable common law. Laurie urged the court to ignore the No Contest Petition's erroneous invocation of the Probate Code.
The trial court denied Susan's anti-SLAPP motion, reasoning in relevant part, "the current law governing enforceability of no contest clauses does not apply here because the [1999 Trust] became irrevocable prior to January 1, 2001."
DISCUSSION
Code of Civil Procedure "[s]ection 425.16, the anti-SLAPP statute, . . . . 'authorizes a defendant to file a special motion to strike any cause of action arising from an act in furtherance of the defendant's constitutional right of petition or free speech in connection with a public issue.' " (Contreras v. Dowling (2016) 5 Cal.App.5th 394, 404.) The statute "requires the trial court to engage in a two-step process in ruling on a special motion to strike. [Citation.] '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.' " (Contreras, at p. 404.) "We review orders granting or denying a special motion to strike under [Code of Civil Procedure] section 425.16 de novo." (Contreras, at p. 405.)
Susan argues (1) the trial court improperly allowed Laurie to effectively amend the No Contest Petition during the litigation of the anti-SLAPP motion and, (2) in any event, Laurie cannot demonstrate a probability of prevailing. We disagree with both contentions.
The parties also dispute whether the anti-SLAPP statute applies to no contest enforcement actions generally and, if it does, whether the No Contest Petition arises from protected activity. Because these issues are not necessary to our resolution of the appeal, we will assume, without deciding, that the anti-SLAPP law applies and the No Contest Petition arises from protected activity.
I. Background On No Contest Clauses
"No contest clauses, whether in wills or trusts, have long been held valid in California. [Citations.] Such clauses promote the public policies of honoring the intent of the donor and discouraging litigation by persons whose expectations are frustrated by the donative scheme of the instrument. [Citation.] [¶] In tension with these public policy interests are the policy interests of avoiding forfeitures and promoting full access of the courts to all relevant information concerning the validity and effect of a will, trust, or other instrument. [Citation.] In light of these opposing interests, the common law in California recognized the enforceability of no contest clauses, albeit strictly construed, 'so long as the condition was not prohibited by some law or opposed to public policy.' " (Donkin, supra, 58 Cal.4th at p. 422.)
In 2008, the Legislature enacted a set of statutes "applying to instruments that became irrevocable on or after January 1, 2001, . . . [that] generally limit enforceability of the no contest clause to (1) direct contests brought without probable cause; (2) challenges to the transferor's ownership of property at the time of the transfer, if expressly included in the no contest clause; and (3) creditor's claims and actions based on them, if expressly included in the no contest clause." (Donkin, supra, 58 Cal.4th at p. 426.) Direct contests are defined by statute as challenges based on limited enumerated grounds, including forgery, lack of capacity, duress, and fraud. (§ 21310, subd. (b).)
The parties agree that a challenge to the Trust B provisions of the 1999 Trust, which became irrevocable on Father's death in 2000, is governed by the common law. Susan asserts that a challenge to the 2003 Amendment is governed by the Probate Code provisions, and we will so assume for purposes of this appeal. It is undisputed that Susan's petitions do not constitute a contest under the Probate Code's provisions.
We note that, when the Trust B provisions of the 1999 Trust became irrevocable in 2000, there apparently were statutes in effect regarding the enforceability of no contest provisions. (See Donkin, supra, 58 Cal.4th at p. 423 [Legislature first enacted such statutes in 1989 and amended them multiple times over the next decade].) Susan does not contend any former statutes limit the enforceability of no contest clauses beyond the common law limitations, and has therefore forfeited any such claim. (People v. Thompson (2010) 49 Cal.4th 79, 110, fn. 13.)
Laurie does not contend the no contest provision in the 2003 Amendment should be governed by any previous law under the "fairness exception," which provides that, if "a party can show that a different result would obtain under the former law on which the transferor relied when executing the estate plan," the court may apply the former law. (Donkin, supra, 58 Cal.4th at p. 433.)
II. De Facto Amendment of the No Contest Petition
Susan contends the No Contest Petition alleged only a no contest claim governed by the Probate Code, and the trial court impermissibly allowed Laurie to effectively amend the No Contest Petition to state a no contest claim under the common law. We conclude the No Contest Petition encompassed a common law no contest claim without the need for amendment.
Susan first argues the No Contest Petition's factual allegations claim Susan's petition seeks to invalidate only the 2003 Amendment. Susan highlights allegations that Susan's petition seeks to validate the 1999 Trust's designation of Susan and Laurie as successor co-trustees and equal beneficiaries of all Trust B property, and to invalidate the 2003 Amendment's provisions designating Laurie as the sole successor trustee and appointing the Property to Laurie.
To be sure, the primary focus of the No Contest Petition is on Susan's challenges to the 2003 Amendment. However, we do not agree with Susan's contention that there are no factual allegations that Susan also challenged the 1999 Trust. The No Contest Petition invokes the no contest provision of the 1999 Trust: "The First Amendment [the 1999 Trust] contains a 'no contest' clause which provides that any beneficiary who unsuccessfully contests any term of the Trust shall be deemed to have predeceased the Trustors and shall have no rights and interests in the Trust." It also expressly alleges that Susan's petitions "constitute a 'trust contest' as they challenge the validity and enforceability of core terms of the First and Third Amendments [the 1999 Trust and 2003 Amendment] . . . ." Finally, the No Contest Provision alleges the 1999 Trust "includes provisions authorizing the surviving spouse to exercise power of appointment over the assets of the entire Trust, both 'A' and 'B.' . . . [In the 2003 Amendment, Mother] exercised the special power of appointment . . . . [¶] Susan speciously claims the power of appointment is invalid because it purportedly conflicts with provisions of the [1999 Trust] stating [Trust B] shall be 'irrevocable' . . . ." (Emphasis added.) It is not clear whether this allegation contends Susan is claiming the 1999 Trust's power of appointment provision is invalid or the 2003 Amendment's exercise of the power of appointment is invalid (or both), but it could reasonably be construed to mean the former. (See Code Civ. Proc., § 452 ["In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties."].) Thus, the No Contest Petition includes factual allegations that Susan violated the 1999 Trust's no contest clause by challenging the validity of provisions of the 1999 Trust.
Susan next argues the No Contest Petition's legal allegations rely solely on the Probate Code's provisions governing no contest enforcement actions. Susan points to the No Contest Petition's invocation of those code sections and use of the term "probable cause" from the Probate Code. Susan fails to establish that these legal allegations restrict Laurie's action. " ' "A party is entitled to any and all relief which may be appropriate under the scope of his pleadings and within the facts alleged and proved, irrespective of the theory upon which the facts were pleaded, [or] the title of the pleading . . . ." ' " (Hernandez v. Lopez (2009) 180 Cal.App.4th 932, 938.) "Erroneous or confusing labels attached by the inept pleader are to be ignored if the complaint pleads facts which would entitle the plaintiff to relief." (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) Thus, to the extent the No Contest Petition relies on the Probate Code's no contest provisions, we, like the trial court, may ignore those assertions in light of the factual allegations asserting a claim under the common law. The trial court did not allow a de facto amendment to the No Contest petition.
We therefore need not decide whether such an amendment would be permissible.
III. Probability of Prevailing
We turn next to whether Laurie demonstrated a probability of prevailing on the No Contest Petition's claim that Susan's petition violated the 1999 Trust's no contest provision. As noted above, the No Contest Petition alleges Susan's petition "speciously claims the power of appointment is invalid because it purportedly conflicts with provisions of the [1999 Trust] stating [Trust B] shall be 'irrevocable' . . . ." Susan argues her petition seeks solely to resolve an ambiguity in the 1999 Trust's power of appointment provision and therefore does not constitute a contest under the common law.
" ' "Whether there has been a 'contest' within the meaning of a particular no-contest clause depends upon the circumstances of the particular case and the language used." ' " (Giammarrusco, supra, 171 Cal.App.4th at p. 1601.) " 'In general, if the beneficiary's proposed action would 'effectively nullify or thwart [a] provision[ ] in the trust instrument' or 'result in the nullification of [the trustor's] clearly stated intent,' the [pleading] 'would constitute a contest within the meaning of the no contest clause.' " (Ibid.; see also id. at p. 1596 [no contest provision applied to attempts to "void, nullify or set aside this trust or any of its provisions," emphasis omitted].) However, where a provision of a trust is ambiguous, a challenge to the interpretation of that provision does not constitute an "attempt to nullify any of the trusts' provisions." (Id. at p. 1602.) "Under the common law, . . . disputes over the interpretation of instruments were not ordinarily seen as violating a no contest clause. 'Rather than thwarting the testator's dispositive intent, the proceeding serves to ascertain and enforce that intent.' " (Donkin, supra, 58 Cal.4th at p. 434.) A pleading "concerns the interpretation of an instrument when its allegations put in issue a provision or term of the instrument that 'is ambiguous and requires judicial interpretation.' " (Ibid.)
The 1999 Trust's no contest provision applies to any attempt to "void, nullify, or set aside our Trust or any of its provisions . . . ."
Susan's petition alleges the 1999 Trust's power of appointment provision is "in direct opposition" to another provision and, read as a whole, the 1999 Trust "evidences [Father's] intent that [Trust B] be distributed according to the terms that both he and [Mother] agreed to during their joint lifetimes," and therefore Mother was unable to subsequently invoke this power of appointment to appoint the Property to Laurie. If successful, this challenge would effectively nullify the 1999 Trust's power of appointment provision by rendering the surviving trustor unable to appoint any Trust B property (with the possible exception of an appointment to Laurie and Susan in equal measure). However, if the provision is ambiguous, Susan's challenge to its interpretation is not a contest under the common law.
The 1999 Trust's power of appointment provision states: "The Surviving Trustor shall have a limited power of appointment during his or her life or on his or her death to appoint to such persons, . . . in the manner in which the Surviving Trustor shall exclusively select the Trust Estate of Trust 'B'. The Surviving Trustor shall make the appointment by either a gift during his or her life or a valid living trust or will, either of which specifically refers to this limited power of appointment. The Surviving Trustor shall not exercise this power in favor of his or her creditors, his or her estate, or the creditors of his or her estate." On its face, there is no ambiguity in this provision and Susan does not contend otherwise.
Instead, Susan points to the immediately following provision: "Upon the death of the Surviving Trustor, Trust 'B' shall terminate and the undistributed net income and principal of Trust 'B' shall thereafter be held, administered and distributed as provided in the paragraphs which follow that existed at the time of the first Trustor's death." Susan points to the parallel provision regarding Trust A, which states: "The unappointed balance or remainder of the Trust shall be administered as provided in the paragraphs that follow." She argues the Trust A provision refers to "the paragraphs that follow," while the Trust B provision refers to "the paragraphs which follow that existed at the time of the first Trustor's death." We see no significance in this distinction. Unlike Trust A, Trust B became irrevocable upon the first trustor's death and therefore the beneficiary designations would not be changed. Indeed, the 2003 Amendment did not alter the Trust B beneficiaries: they remained Susan and Laurie, in equal share; because Mother had appointed the Property to Laurie, it was no longer part of the Trust B estate.
Susan also argues the Trust A provision refers to the "unappointed balance" while the Trust B provision refers to the "undistributed net income and principal." (Emphases added.) The power of appointment provision is detailed and specific. The subsequent provision clearly governs the administration of the remaining trust property. That it refers to the "undistributed" estate but not the "unappointed" estate does not render the power of appointment provision ambiguous. Susan provides no authority for her implied contention that property transferred pursuant to a power of appointment cannot be characterized as "distributed" property. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [" 'The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.' "].) Moreover, we are able to discern no relevant distinction between "appointed" and "distributed" property from the provisions of the 1999 Trust. For example, while the Trust A provision highlighted by Susan does not refer to the "undistributed" balance, it cannot seriously be contended that such an omission renders ambiguous provisions authorizing distributions from Trust A to the surviving trustor during her lifetime.
Moreover, the 1999 Trust's Trust B provisions as a whole demonstrate that Trust B was established for tax purposes and the transfer of property into the Trust B estate was left to the surviving trustor's discretion. (See Donkin, supra, 58 Cal.4th at p. 418, fn. 3 [trust provisions "demonstrat[e] the [trustors'] clear intent to establish an estate plan that minimizes estate taxes"].) The surviving trustor was to allocate to Trust B "property not less than that in value which will be needed to increase the Deceased Trustor's taxable estate to the largest amount that will not result in a federal estate tax being imposed on the Deceased Trustor's estate . . . , with the actual value and asset selection at the election of the Surviving Trustor . . . ." Given that the 1999 Trust imposed no limitations on the surviving trustor's selection of Trust B property—other than that it be in a value relevant to estate tax purposes—we see no basis to infer an intent to limit the surviving trustor's ability to appoint Trust B property, other than the express limitation set forth in the power of appointment provision itself.
Laurie submitted evidence supporting this interpretation from the attorney who drafted the 1999 Trust. Because we find the provision unambiguous, we need not and do not rely on this extrinsic evidence.
Contrary to Susan's argument, this case is not like Giammarrusco, supra, 171 Cal.App.4th 1586. In Giammarrusco, the "trust provided that the surviving trustor could exercise a limited power of appointment over specified property in three ways: (1) 'by a Will . . . duly admitted to probate,' (2) 'by a . . . Codicil duly admitted to probate,' or (3) 'by a written acknowledged instrument delivered to the Trustee.' The trust then stated, '[i]f no Will or Codicil purporting to be that of the Survivor is filed for probate within sixty (60) days of his or her death, it shall be conclusively presumed that the Survivor did not exercise this limited power of appointment.' " (Giammarrusco, at p. 1593.) One of the beneficiaries argued the omission of the third way in the conclusive presumption provision was a scrivener's error. (Ibid.) The Court of Appeal found "[t]he provision in [the trust] establishing three methods of exercising the limited power of appointment is ambiguous. It is immediately followed by language creating a conclusive presumption that one of the methods—an acknowledged instrument delivered to the trustee—is ineffective if a filing deadline is not satisfied with respect to the other two methods—a will or codicil." (Id. at p. 1601.) The court concluded the challenge therefore did not trigger the trust's no contest clause: "Given the ambiguity between [these two provisions], we cannot say that [the beneficiary's challenge] would nullify [the trusts] or attempt to nullify any of the trusts' provisions. Here, the trustors' intent is not so 'clearly' or 'unequivocally expressed' that it would be frustrated by the beneficiary's proposed action." (Id. at p. 1602.) "Indeed, the purpose of [the challenge] is to examine the ambiguous and conflicting provisions in [the trusts] so the trial court can determine and implement the trustors' wishes." (Id. at p. 1609.)
In contrast, a separate provision authorized a general power of appointment over different property, exercisable in the same three ways, with a conclusive presumption including the additional scenario, " 'if no written, acknowledged instrument is filed with the Trustee prior to the end of such period . . . .' " (Giammarrusco, supra, 171 Cal.App.4th at pp. 1595-1596, emphasis omitted.)
Unlike the trust in Giammarrusco, there is no conflict between the 1999 Trust's power of appointment provision and any other provision. We conclude the power of appointment provision is unambiguous. Susan's challenge to the provision would therefore " 'result in the nullification of [the trustor's] clearly stated intent.' " (Giammarrusco, supra, 171 Cal.App.4th at p. 1601.) Because our conclusion that the provision is unambiguous also renders Susan's challenge to the provision unavailing, Laurie has established the requisite probability of prevailing on the No Contest Petition.
Although the parties dispute whether Laurie demonstrated a probability of prevailing with respect to other claims in Susan's petition, we need not decide these issues. Susan does not contend that Laurie must show all of Susan's challenges are contests in order to prevail on the No Contest Petition; nor has Susan argued that, in the event we find Laurie has shown a probability of prevailing on only some of the No Contest Petition's allegations, any remaining allegations should be stricken.
IV. Pending Motions and Requests
On December 14, 2016, Laurie filed a request for judicial notice, which related to her claim that the anti-SLAPP statute does not apply to no contest enforcement actions. Because we have found it unnecessary to resolve this claim, we deny as irrelevant the request for judicial notice.
On January 17, 2017, Laurie filed a motion to strike or disregard portions of Susan's opening brief. We disregard any noncompliance with California Rules of Court, rule 8.204 (Cal. Rules of Court, rule 8.204(e)(2)(C)), and therefore deny the motion.
On February 6, 2017, Laurie filed a motion to dismiss the appeal on the grounds that (1) the record on appeal was inadequate, and (2) the anti-SLAPP statute's discovery stay and prejudgment appeal provisions (Code Civ. Proc., § 425.16, subds. (g), (i)) are unconstitutional. We are resolving the appeal in Laurie's favor and deny her motion to dismiss as moot. We accordingly deny Susan's March 9, 2017 request to provide briefing on the constitutional issue raised in Laurie's motion to dismiss.
To the extent we nonetheless have the discretion to decide the constitutional claim on the merits, we decline to do so. --------
On February 7, 2017, Laurie filed a motion for sanctions. She first contends Susan's appeal is frivolous because she did not include the reporter's transcript of the anti-SLAPP hearing and this court is therefore unable to determine the reasons behind the trial court's rulings. Laurie fails to explain why this is necessary to our resolution of the appeal. (Muller v. Fresno Community Hospital & Medical Center (2009) 172 Cal.App.4th 887, 906-907 ["It is the ruling, and not the reason for the ruling, that is reviewed on appeal."].) She next argues Susan's appeal is frivolous with respect to Laurie's probability of prevailing. We do not find the appeal so without merit as to be frivolous. (See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650-651 ["An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. . . . [Sanctions for frivolous appeals] should be used most sparingly to deter only the most egregious conduct."].) We decline Laurie's invitation to find that the trial court's separate ruling for Laurie on the merits of Susan's petition conclusively established Laurie has a probability of prevailing on the No Contest Petition. Even if such an inference were permissible, the resolution of Susan's petition did not determine whether it constituted a contest. Finally, we do not find any violations of California Rule of Court, rule 8.204 warrant sanctions. We deny the motion.
On February 15, 2017, Laurie filed a request for judicial notice of the trial court's order staying proceedings pending this appeal. She argues the order is relevant to (1) her claim that the anti-SLAPP statute does not apply to no contest enforcement actions, (2) her claim in the motion to dismiss that the anti-SLAPP statute's stay and prejudgment appeal provisions are unconstitutional, and (3) her sanctions motion. We have found it unnecessary to decide the first two issues. With respect to the third, the stay order is not relevant to our determination. We therefore deny as irrelevant the request for judicial notice.
On February 16, 2017, Susan filed a request to submit briefing on two cases cited in Laurie's response brief and discussed at greater length in her sanctions motion. Because our ruling does not rely on either of these cases, we deny the request for additional briefing.
The last motion filed (to date) is Laurie's April 3, 2017 motion to augment the record with the reporter's transcript of the July 2016 hearing on Susan's anti-SLAPP motion. The motion requests augmentation only in the event that we reach the merits of the constitutional claim raised in Laurie's motion to dismiss. We do not, and therefore deny the motion to augment.
DISPOSITION
The order is affirmed. Laurie shall recover her costs on appeal.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.