Opinion
B314910
01-17-2023
ESTATE OF MARIE FALKENBORG, Deceased v. LYNN FALKENBORG WINTERROWD, Executor, Respondent and Appellant. DONALD DALE FALKENBORG, Petitioner and Respondent,
Shaw Koepke & Satter and Jens B. Koepke for Respondent and Appellant. Snow Law Corp. and Stephen L. Snow for Petitioner and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 17STPB08636 Deborah L. Christian, Judge. Reversed.
Shaw Koepke & Satter and Jens B. Koepke for Respondent and Appellant.
Snow Law Corp. and Stephen L. Snow for Petitioner and Respondent.
BAKER, J.
This is the second appeal arising out of probate proceedings marked by recriminations between two siblings. In the first appeal, we held Lynn Falkenborg Winterrowd (Lynn) could proceed with an effort to seek costs from her brother Donald Falkenborg (Donald) but failed to allege sufficient facts to maintain a malicious prosecution claim against him. (Estate of Falkenborg (October 25, 2022, B305925) [nonpub.opn.] (Falkenborg I).) We are now asked to decide the viability of a malicious prosecution claim going the other way, i.e., whether Donald, in opposing an anti-SLAPP motion filed by Lynn (Code Civ. Proc., § 425.16), established a probability of success on a malicious prosecution claim he brought against his sister.
We take judicial notice of the appellate record in Falkenborg I. (Evid. Code, §§ 451, subd. (a), 452, subd. (d), 459, subd. (a).)
Undesignated statutory references that follow are to the Code of Civil Procedure.
I. BACKGROUND
A. Prior Probate Proceedings
Following the death of their mother Marie Falkenborg (Marie), Lynn petitioned for probate of the will and for letters of special administration. Donald consented to Lynn's appointment as a special administrator, but he objected to her request to be granted general powers over the estate. In addition, he opposed Lynn's appointment as executor.
Among other things, Donald alleged Lynn exercised undue influence over Marie and succeeded in getting Marie to amend the revocable portion of her living trust so as to give all of the assets in that portion to Lynn. Donald also maintained Lynn prevented him from learning about her financial dealings with Marie and alleged Lynn possessed a deep hostility toward him and the will's other beneficiaries. In addition, Donald averred Lynn "may have physically abused" Marie and, through neglect, may have contributed to her death. Donald further advised the probate court that he intended to file a competing petition asking the court to appoint him or a neutral third party to administer the estate.
The probate court ultimately appointed Lynn as special administrator and later-after Donald withdrew his initial objections-as executor.
Shortly after Lynn was appointed executor, but before she obtained letters testamentary, Lynn petitioned the probate court for an order directing Donald to pay the legal fees and costs the estate incurred in defending against his objections to her appointment as special administrator and executor. Among other things, Lynn alleged Donald's objections constituted a direct will contest made without supporting evidence or probable cause. Lynn maintained it would be "unjust" if all of the estate's distributees had to pay for the expense of defending against Donald's objections, but she did not otherwise reveal any other motivations for her petition.
Donald demurred to Lynn's costs petition and moved to strike it. Donald argued his objection to Lynn's appointment as executor was not a direct will contest because he never asserted Marie's will was obtained by undue influence or that Marie lacked the capacity to execute her will.
Before the probate court heard Donald's demurrer and motion to strike, Lynn filed an amended petition for costs. (At the time, she had not yet received letters testamentary.) The amended petition, among other things, added a cause of action for malicious prosecution that sought both compensatory and punitive damages for Donald's objection to Lynn's appointment as executor.
As with her original costs petition, Lynn's amended petition asserted she filed it to preserve the estate's assets. She alleged Donald lacked probable cause for his objection to her appointment as executor because he knew he had been a "feckless son" who had not been trusted by his parents and who had removed himself from his family. Lynn also alleged Donald had "bilked his parents out of large sums of money and had stolen from their company."
Donald moved for judgment on the pleadings. He argued Lynn lacked standing to bring the petition as executor of the estate because the amended petition was filed before her appointment became effective (i.e., before letters testamentary had issued). Donald additionally argued Lynn lacked standing to seek costs in her capacity as Marie's daughter because an individual could not act for the benefit of the estate.
The probate court granted Donald's motion for judgment on the pleadings and denied the amended costs petition. Without addressing Lynn's standing as Marie's daughter, the court found Lynn lacked standing as executor because her appointment was not effective when the amended petition was filed and this jurisdictional defect was not cured by her subsequent effective appointment. On the malicious prosecution cause of action, the court found Donald's objection to Lynn's appointment as executor was not a prior action that could support such a claim and a contrary finding would encourage unnecessary litigation. The court concluded its minute order denying the amended costs petition with the following: "Hence this court grants Mr. Falkenborg's Motion for Judgment on the Pleadings. Any finding of intentional interference is found in favor of Donald Falkenborg, along with a finding of malicious prosecution."
While her amended costs petition was being litigated, Lynn, again acting in her capacities as daughter and executor, filed an initial and then an amended petition to determine heirship and entitlement to distribution. In her verified amended heirship petition, Lynn argued Donald violated the no-contest clause in Marie's will when he challenged Marie's capacity to redeem shares in the family business and amend her trust to dispose of those shares. The probate court sustained Donald's demurrer to the amended heirship petition without leave to amend. The court found the no-contest clause in Marie's will was separate from that found in the trust instruments and that any challenge to the trust by Donald did not frustrate the purpose of the will or Marie's testamentary intent.
B. Donald's Petition for Malicious Prosecution
In November 2020, nine months after the probate court denied the amended costs petition (and eight months after the amended heirship petition was dismissed), Donald filed a verified petition asserting malicious prosecution claims against Lynn. Donald claimed that each of the three petitions that Lynn had by then filed against him (the original costs petition, the amended costs petition, and the amended heirship petition) had been terminated in his favor, brought without probable cause, and with malice. Because it is central to our disposition of this appeal, we will focus our summary of the pertinent background on the allegations made by Donald that are relevant to the malice element of a malicious prosecution claim.
Donald contended Lynn brought the original costs petition with malice because there was "absolutely no" legal or factual basis for it. In his words, the original costs petition was "pure harassment motivated by Lynn's ill will toward Donald. Lynn was determined to harass and punish Donald. There is a financial disparity between Lynn and Donald. Donald had stood up to Lynn. Lynn would use that financial disparity to punish Donald even if it meant filing frivolous actions. [The original costs petition] was a flagrant abuse of the judicial process."
As to the amended costs petition, Donald averred it had been brought with malice because it was filled "with vicious lies" about Donald-for instance (and again in Donald's words), an assertion that "Donald moved across state lines to avoid paying child support" and "skipped his grandmother's funeral to go surfing." Donald also pointed to the language the probate court included at the end of its minute order granting his motion for judgment on the pleadings (quoted earlier), which he read as an express finding that Lynn's amended costs petition constituted malicious prosecution.
Finally, regarding the amended heirship petition, Donald alleged it was the product of Lynn's ill will for much the same reasons as the original costs petition: there was "absolutely no factual basis" and "absolutely no legal basis" for it and Lynn acted merely to "harass and punish Donald .... by asserting a frivolous claim hoping to crush Donald financially in an unjust war of attrition."
C. Lynn's Anti-SLAPP Motion
Pursuant to the anti-SLAPP statute, Lynn moved to strike Donald's malicious prosecution petition in full or, failing that, to strike "those causes of action or portions thereof" the court found to fall within the scope of the anti-SLAPP statute. She argued all three of the pleadings at issue were acts in furtherance of her right to petition and accordingly fell within the range of activity protected by the anti-SLAPP statute. Lynn also contended Donald could not show he had a reasonable probability of prevailing on the malicious prosecution petition for various reasons, including because there was no admissible evidence that would permit finding she acted with malice in prosecuting any of the three filings at issue. With regard to Donald's allegation that the probate court found the amended costs petition to constitute malicious prosecution, Lynn argued Donald was misconstruing the court's minute order. In Lynn's view, the probate court could not have intended to make such a finding because the court, in ruling on Donald's motion for judgment on the pleadings, had no occasion to rule on an affirmative claim by Donald that Lynn acted maliciously.
Taking the amended heirship petition as an example, Lynn argued she filed it to administer Marie's estate in a manner consistent with her wishes. Lynn specifically cited (and submitted with her petition) a declaration by Marie's estate planning attorney describing an in-person meeting he held with Marie in September 2016, a year before she died, and a copy of typed notes made by the attorney following a telephone conversation he had with Marie in October 2016. These materials indicated Marie did not want Donald to receive anything from her estate.
With her anti-SLAPP motion, Lynn also submitted her own declaration. In it, she averred she "did not have any malicious motivation or intentions." She explained she "filed [the petitions at issue] for the purpose of adjudicating the claims therein" and her "intent in litigating these petitions w[as] to carry out the estate planning desires of my parents" rather than any "malice or ill will toward [Donald]."
Donald's opposition to the anti-SLAPP motion conceded his petition implicated anti-SLAPP protected activity. But he argued the motion should be denied because he could demonstrate a probability of prevailing on his malicious prosecution petition.
Donald contended each of the three filings at issue was resolved in his favor: the original costs petition, with its direct contest allegation, was abandoned by Lynn after he filed his demurrer and motion to strike; the amended costs petition, which was filed without a direct will contest allegation, was denied after the probate court granted his motion for judgment on the pleadings; and the amended heirship petition was dismissed with prejudice after the court sustained his demurrer. Donald further argued these asserted favorable terminations were evidence of both Lynn's lack of probable cause and her malice (because there was "no factual or legal basis" for Lynn's petitions, they were "pure harassment motivated by Lynn's ill will and desire for revenge against Donald").
As for the evidence that would demonstrate he had a probability of prevailing, Donald asserted it was to be "largely found" in the record of the probate proceeding, portions of which he asked the probate court to judicially notice. He did not submit his own declaration in support of his opposition. He submitted no evidence regarding either the purported disparity in financial circumstances between him and his sister or the amount of money he alone spent defending against the petitions at issue. With respect to his contention that the amended costs petition was "replete with vicious lies," Donald submitted no declarations or documents that would suggest Lynn's allegations about his past conduct were false. Indeed, the only declaration offered in support of Donald's opposition was from his attorney, who summarized, paraphrased, and characterized the probate proceedings in terms that closely mirrored but did not expand upon the general allegations in Donald's malicious prosecution petition.
Lynn's reply in support of her anti-SLAPP motion emphasized the malice element of a malicious prosecution claim requires proof of subjective intent and highlighted the absence of any admissible evidence from Donald concerning her subjective motivations for bringing any of the three petitions at issue. Lynn also raised evidentiary objections to the attorney declaration submitted with Donald's opposition, contending in essence that the declaration was not evidence, just unsupported argument.
D. The Trial Court Denies the Anti-SLAPP Motion
In June 2021, the probate court held a hearing on Lynn's anti-SLAPP motion. Donald's attorney confirmed his client conceded the pleadings at issue were activities protected by the anti-SLAPP statute, and after hearing further from both sides (including on what must be shown to establish malice for malicious prosecution purposes), the court took the matter under submission.
The probate court subsequently issued an order denying the motion. The court did not disagree with the parties that the first prong of anti-SLAPP analysis (claims arising from activity protected by the anti-SLAPP statute) had been satisfied. But the court found Donald demonstrated a reasonable probability of prevailing on his malicious prosecution claims. Regarding the malice that a malicious prosecution plaintiff must show (under the governing "minimal merit" standard (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier)) for anti-SLAPP motions), this was the court's analysis: "[M]alice may be inferred from facts establishing lack of probable cause or valid purpose. Here[,] improper purpose on behalf of [Lynn] can likely be inferred from the facts establishing lack of probable cause .... Here, Donald's verified petition can be utilized to show he attests to [Lynn's] acts of malice and hostility along with the lack of merit of the claims brought by [Lynn] in the filing of multiple petitions."
As to the outstanding evidentiary objections, the probate court noted it sustained Lynn's objections to (1) those passages in the declaration of Donald's trial counsel stating the original costs petition was "pure harassment motivated by Lynn's ill will toward Donald and financed by Lynn's financial advantage over Donald" and (2) the assertions in the declaration that the amended costs petition was "replete with lies about Donald" and there was "no" factual or legal basis for the amended heirship petition. Donald does not challenge these evidentiary rulings.
The court did not expressly rule on the parties' respective requests for judicial notice, so we proceed on the understanding they were granted. (See, e.g., Aaronoff v. Martinez-Senftner (2006) 136 Cal.App.4th 910, 919.)
E. Partial Reversal of the Motion for Judgment on the Pleadings Ruling
Lynn appealed the trial court's ruling granting Donald's motion for judgment on the pleadings on Lynn's amended costs petition (which included a malicious prosecution claim against Donald). We affirmed the probate court's conclusion that Lynn's malicious prosecution cause of action failed to state a claim. We also held, however, that Lynn did have standing to seek costs for the estate as an "interested person" under the Probate Code (Prob. Code, § 48), and we accordingly reversed the probate court's ruling to the contrary and remanded for further proceedings on the stand-alone costs claim.
II. DISCUSSION
Reversal of the probate court ruling is required. No one disputes Donald's malicious prosecution petition against Lynn implicates anti-SLAPP protected activity (see generally Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735 (Jarrow Formulas)), which means Donald has the burden to "'"demonstrate that [his malicious prosecution petition] is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited."'" (Navellier, supra, 29 Cal.4th at 88-89.) That was not done with respect to the malice element of malicious prosecution. Donald offered no evidence, other than the allegations in his verified petition-which, as we will explain in a moment, do not count for much-to establish Lynn brought the three petitions in question with malice. Because Donald did not carry his burden to adduce some proper evidence of malice (Donald submitted no declaration attempting to establish Lynn's subjective ill will and objections to the pertinent parts of his attorney's declaration were sustained), no minimal merit showing was made and the probate court should have granted Lynn's anti-SLAPP motion.
A. Anti-SLAPP Law
"'Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by 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. [Our Supreme Court] ha[s] described this second step as a "summary-judgment-like procedure." [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law. [Citation.] "[C]laims with the requisite minimal merit may proceed."' [Citation.]" (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940 (Sweetwater).) Our review is de novo. (Ibid.)
In determining whether a plaintiff has met his or her responsive evidentiary burden under the second step of the inquiry, a court "shall" consider the pleadings. (§ 425.16, subd. (b)(2).) A plaintiff seeking to demonstrate the merit of the claim, however, "'may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.' [Citations.]" (Sweetwater, supra, 6 Cal.5th at 940; accord, Karnazes v. Ares (2016) 244 Cal.App.4th 344, 354 ["Appellant claims that she alleged verified detailed facts in her complaint and in her response. However, pleadings do not constitute evidence"]; see also Weil &Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 7.1021.1, p. 7(II)-71 ["The anti-SLAPP statute should be interpreted to allow the court to consider the 'pleadings' in determining the nature of the 'cause of action'-i.e., whether the anti-SLAPP statute applies. But affidavits stating evidentiary facts should be required to oppose the motion (because pleadings are supposed to allege ultimate facts, not evidentiary facts)"], italics omitted.)
B. Malicious Prosecution and the Element of Malice
To prevail on a malicious prosecution claim, the plaintiff must show "'that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in [the plaintiff's] favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].'" (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871; accord, Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292 (Soukup); Parrish v. Latham &Watkins (2017) 3 Cal.5th 767, 775-776 & fn. 1.)
"'As an element of malicious prosecution, malice "reflects the core function of the tort, which is to secure compensation for harm inflicted by misusing the judicial system, i.e., using it for something other than to enforce legitimate rights and secure remedies to which the claimant may tenably claim an entitlement."' [Citation.]" (Area 55, LLC v. Nicholas & Tomasevic, LLP (2021) 61 Cal.App.5th 136, 169 (Area 55).) "'The "malice" element . . . relates to the subjective intent or purpose with which the defendant acted in initiating the prior action. [Citation.] The motive of the defendant must have been something other than that of bringing a perceived guilty person to justice or the satisfaction in a civil action of some personal or financial purpose. [Citation.] The plaintiff must plead and prove actual ill will or some improper ulterior motive.'" (Soukup, supra, 39 Cal.4th at 292, quoting Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 494 (Downey Venture), italics omitted.)
"'"Since parties rarely admit an improper motive, malice is usually proven by circumstantial evidence and inferences drawn from the evidence."' [Citation.]" (Area 55, supra, 61 Cal.App.5th at 170; see also id. at 170-171 [malice could be inferred from defendant attorneys' errata sheet revisions to their client's deposition testimony which deleted all 35 references to an individual "in an attempt to eliminate information" about the individual's involvement in the filing of a class action]; HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218 (HMS Capital) [malice demonstrated where, in addition to an objective lack of probable cause, defendant took no depositions in the underlying litigation, propounded only one set of form interrogatories, and refused to dismiss the underlying case unless the plaintiff paid $25,000].)
"'Malice may . . . be inferred from the facts establishing lack of probable cause'" (Soukup, supra, 39 Cal.4th at 292), but a lack of probable cause alone is rarely sufficient to draw such an inference-at least without evidence the plaintiff was aware that probable cause was lacking and continued to prosecute the action anyway. (See, e.g., Jarrow Formulas, supra, 31 Cal.4th at 743; Gruber v. Gruber (2020) 48 Cal.App.5th 529, 538 ["Malice requires more than proof that the party acted without probable cause"]; Zhang v. Chu (2020) 46 Cal.App.5th 46, 57 ["Zhang argues the trial court's finding on element one-no probable cause-should satisfy element three: malice. This argument is legally invalid. The two elements are distinct"]; HMS Capital, supra, 118 Cal.App.4th at 218; Downey Venture, supra, 66 Cal.App.4th at 498; see also Area 55, supra, 61 Cal.App.5th at 170 ["malice can be inferred when a party continues to prosecute an action after becoming aware that the action lacks probable cause"], italics omitted.)
Drummond v. Desmarais (2009) 176 Cal.App.4th 439 illustrates the type of evidence unrelated to lack of probable cause that may properly suffice to establish malice. In that case, plaintiffs sued their former attorney and alleged he maliciously prosecuted two previous suits against them. (Id. at 443.) The attorney's subjective ill will, the Court of Appeal held, could be inferred from his conduct as attested to by one of the plaintiffs in her declaration: following a hearing where plaintiffs were unable to get any money from the estate because the attorney blocked any distributions, the attorney taunted plaintiffs and laughed and mocked them; in addition, he threatened to take plaintiff's home, asked to see the title to plaintiff's cars when he knew that money in the estate was more than four or five times' his fees, and demanded plaintiff provide him with his minor children's email addresses. (Id. at 452; see also Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1157 [malice demonstrated by defendant's threats to make trouble for plaintiff, his attempts to bring others into the dispute, and the institution of an adverse media campaign to interfere with plaintiff's business]; Bertero v. National General Corp. (1974) 13 Cal.3d 43, 54 [malice shown by defendant's threat to go "all the way" in the litigation, compounded by the defendant's attorney's admission that he "argu[ed] a weak point in his brief '. . . not because of any high hopes of now winning it, but because [he] wanted to show the Appellate Court what a bastard [plaintiff] was"].)
C. Donald Did Not Carry His Burden to Show a Probability of Prevailing Because He Submitted No Competent Admissible Evidence to Substantiate His Allegation of Malice
Donald's malicious prosecution petition alleged Lynn's ill will in general terms only and relied instead on her alleged lack of probable cause to supply proof of malice. Then, in opposing Lynn's anti-SLAPP motion, Donald put forward no declaration from himself or others that would constitute sufficient prima facie showing of facts to sustain a conclusion that Lynn filed the costs petitions and the heirship petition to misuse the judicial system rather than to enforce legitimate rights to which she might tenably claim an entitlement. Instead, he chose to offer only a declaration from his attorney-who did not offer any new facts about Lynn's subjective motivations or Donald's (or Lynn's) financial circumstances. The evidentiary deficit is fatal under established anti-SLAPP precedent. (See, e.g., City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 420 ["The plaintiff need only state and substantiate a legally sufficient claim"], italics added; see also Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788 [proof at the second step of anti-SLAPP analysis "must be made upon competent admissible evidence"] (Monster Energy).)
Insofar as Donald nonetheless protests that malice can be inferred merely from a demonstrated lack of probable cause for filing the three petitions in question (lack of probable cause is an issue we find unnecessary to decide, except insofar as our holding in Falkenborg I bears on the merits of the amended costs petition), he put forward no facts that Lynn continued to prosecute any of the three petitions while aware of a supposed lack of probable cause (and, indeed, the available evidence is to the contrary with respect to the withdrawal of the claim in the initial costs petition). This is accordingly not a record on which a factfinder might appropriately draw an inference of malice without any other evidence of subjective ill will or improper purpose. Furthermore, insofar as Donald would rely on factually underdeveloped allegations in his verified petition as evidence of malice, the claim is foreclosed by controlling precedent. (See, e.g., Monster Energy, supra, 7 Cal.5th at 788; Sweetwater, supra, 6 Cal.5th at 940.) Finally, insofar as Donald continues to point to the rather ambiguous language at the end of the probate court's minute order granting his motion for judgment on the pleadings, the rejoinder is obvious: the statement is not binding on this court-particularly when we partially reversed that ruling.
DISPOSITION
The order denying Lynn's special motion to strike pursuant to section 425.16 is reversed. The cause is remanded with directions to grant Lynn's special motion to strike and for further proceedings consistent with this opinion. Lynn is awarded costs on appeal.
We concur: RUBIN, P. J., KIM, J.