Anti-SLAPP in Probate and Trust Litigation

A “Strategic Lawsuit Against Public Participation,” or SLAPP suit, is a court filing complaining of injury as a result of petitioning the court or free speech activity. A SLAPP suit is controversial. Its intent often is to intimidate perceived adversaries by burdening them with the expense of a legal defense until they are silenced. Critics of SLAPP suits cheered when Cal. Code of Civil Procedure § 425.16 was enacted in 1992. Section 425.16 allows a special motion to strike a SLAPP suit. A Section 425.16 special motion to strike, called an “anti-SLAPP” motion, is a powerful tool that litigators can wield against SLAPP suits.

Over the years, the broad reach of the anti-SLAPP motion has itself generated controversy. Litigators, as they often do, have pushed the envelope of this powerful tool, threatening anti-SLAPP motions against all kinds of lawsuits. In short, the tool intended to curb litigation abuse has become the subject of abuse.

Reigning in the application of anti-SLAPP motions has become a hot topic in probate and trust litigation. That topic also is before the legislature: pending Senate Bill 329 proposes the prohibition of anti-SLAPP motions in trust and will contest proceedings.