Filed 5/7/19 (unmodified opinion attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

SARAH PLOTT KEY,

Plaintiff and Appellant,

v.

ELIZABETH PLOTT TYLER et al.,

Defendants and Respondents.

B283979

(Los Angeles County

Super. Ct. No. BP131447)

ORDER MODIFYING OPINION 

AND DENYING REHEARING 

[CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on April 19, 2019, 

and reported in the Official Reports (___ Cal.App.5th ____) be 

modified as follows:

On page 55, the paragraph under the heading 

DISPOSITION is deleted and the following paragraph is inserted 

in its place:

The probate court’s orders (1) striking Key’s No 

Contest Petition under Code of Civil Procedure section 
2

425.16; (2) awarding attorney fees to prevailing parties on 

their motion to strike under Code of Civil Procedure section 

425.16; and (3) denying Key’s motion for attorney fees on 

appeal are reversed. The case is remanded for further 

proceedings on Key’s petition and for determination of 

Key’s reasonable attorney fees in defending Tyler’s appeal 

in case No. B258055. On remand, the trial court shall 

determine whether those fees are to be paid solely from 

Tyler’s share of the Trust estate (if any). Key is entitled to 

her costs on this appeal.

This modification changes the judgment.

Appellant’s petition for rehearing is denied.

CERTIFIED FOR PUBLICATION.

LUI, P. J. ASHMANN-GERST, J. HOFFSTADT, J.
Filed 4/19/19 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

SARAH PLOTT KEY,

Plaintiff and Appellant,

v.

ELIZABETH PLOTT TYLER et al.,

Defendants and Respondents.

B283979

(Los Angeles County

Super. Ct. No. BP131447)

APPEAL from orders of the Superior Court of Los Angeles 

County. David J. Cowan, Judge. Reversed and remanded with 

directions.

Grignon Law Firm, Margaret M. Grignon, Anne M. 

Grignon; Wershow & Cole and Jonathan A. Wershow for Plaintiff

and Appellant.

Magee & Adler, Eric R. Adler; Murphy Rosen and Paul D.

Murphy for Defendant and Respondent Elizabeth Plott Tyler.

Silas Isadore Harrington; Williams Iagmin and Jon R. 

Williams for Defendant and Respondent Jennifer Plott Potz.

_________________________________
2

Sarah Plott Key (Key) appeals from orders of the probate 

court (1) striking her petition to enforce a no contest clause in a 

trust under the “anti-SLAPP” statute (Code Civ. Proc., § 425.16)1

and (2) denying her motion to recover her attorney fees incurred 

in defending an earlier unsuccessful appeal filed by respondent 

Elizabeth Plott Tyler (Tyler). Key and Tyler are sisters and, 

along with the third sister, respondent Jennifer Plott Potz (Potz), 

are beneficiaries of a family trust (Trust) that their parents first 

created in 1999. Tyler was the trustee.

The Trust was purportedly amended in 2007 (2007 

Amendment), substantially changing the beneficiaries’ rights and 

effectively disinheriting Key. Key filed a petition in 2011 

(Invalidity Petition) seeking a ruling that the 2007 Amendment 

was a product of undue influence by Tyler. The probate court 

granted that petition, and this court affirmed that ruling in a 

nonpublished opinion. (Key v. Tyler (June 27, 2016, mod. 

June 29, 2016, B258055) (Key v. Tyler I).)

Following remand, Key filed a petition to enforce the 

Trust’s no contest clause against Tyler (No Contest Petition), 

claiming that Tyler’s judicial defense of the invalid 2007 

Amendment implicated that clause. Citing the same section of 

the Trust that contains the no contest clause, Key also sought an 

award of her attorney fees on appeal, which she claimed she 

incurred while resisting Tyler’s attack on the original Trust 

provisions.

Tyler responded with an anti-SLAPP motion. Tyler argued 

that Key’s No Contest Petition arose from Tyler’s protected 

 

1 “SLAPP” is an acronym for “[s]trategic lawsuit against 

public participation.” (Briggs v. Eden Council for Hope & 

Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.)
3

litigation conduct under Code of Civil Procedure section 425.16, 

subdivision (e)(3), and that Key could not show a likelihood of 

success on her No Contest Petition for a variety of reasons, 

including that Key, not Tyler, had initiated the proceedings 

challenging the validity of the 2007 Amendment. Tyler also 

opposed Key’s request for attorney fees.

The probate court granted Tyler’s anti-SLAPP motion and 

denied Key’s motion for attorney fees. The court rejected Key’s 

argument that the anti-SLAPP statute does not apply to petitions 

to enforce no contest provisions in probate court. The court also 

found that Key failed to show a probability of success on her No 

Contest Petition because Tyler’s defense against the Invalidity 

Petition that Key filed was not an enforceable “direct contest” of 

the Trust. (Prob. Code, § 21311.)2 With respect to the request for 

attorney fees, the court ruled that Key had failed to identify any 

statutory or equitable basis for the request.

We reverse both orders. We agree with the probate court 

(and with a recent decision by Division Five of this district) that 

the anti-SLAPP statute applies to a petition such as Key’s 

seeking to enforce a no contest clause. However, we conclude 

that Key adequately demonstrated a likelihood of success under 

the second step of the anti-SLAPP procedure. Tyler’s judicial 

defense of the 2007 Amendment that she procured through undue 

influence meets the Trust’s definition of a contest that triggered 

the no contest clause. And, under sections 21310 and 21311, that 

clause is enforceable against Tyler because the pleadings that 

Tyler filed defending the 2007 Amendment constituted a “direct 

contest” of the Trust provisions that the amendment purported to 

 

2 Subsequent undesignated statutory references are to the 

Probate Code.
4

alter. (§ 21310, subd. (b)(5).) Key also provided sufficient 

evidence that Tyler lacked probable cause to defend the 2007 

Amendment. (§ 21311, subd. (a)(1).) The findings of the probate 

court concerning Tyler’s undue influence, which this court 

affirmed, provide a sufficient basis to conclude that Key has 

shown a probability of success on her No Contest Petition.

The same section of the Trust that contains the no contest 

clause also provides that expenses to resist any “contest” or 

“attack” on a Trust provision shall be paid from the Trust estate. 

We conclude that this section provides Key with the contractual 

right to seek reimbursement of her attorney fees incurred in 

resisting Tyler’s appeal of the probate court’s ruling invalidating 

the 2007 Amendment. We therefore reverse the probate court’s 

rulings and remand for the court to determine Key’s reasonable 

attorney fees and for further proceedings on Key’s No Contest 

Petition.

BACKGROUND

1. Facts Concerning Tyler’s Undue Influence3

Tyler, Key, and Potz are the daughters of Thomas and 

Elizabeth Plott, who owned a successful family nursing home 

business. Thomas and Elizabeth created the Trust in 1999 and 

amended it in 2002 and 2003. Thomas died in 2003. (Key v. 

Tyler I, supra, B258055.)

 

3 This factual summary is based primarily on the probate 

court’s statement of decision dated April 25, 2014 (Statement of 

Decision), following the trial on Key’s Invalidity Petition and on 

this court’s prior opinion in Key v. Tyler I, supra, B258055. We 

cite that opinion pursuant to California Rules of Court, rule 

8.1115(b)(1), which permits citation of nonpublished opinions 

when relevant under the doctrines of res judicata or collateral 

estoppel.
5

The Trust provided that, upon the death of the first spouse, 

the estate would be divided into three separate subtrusts: the 

survivor’s trust; the marital trust; and the exemption trust. The 

marital trust and the exemption trust became irrevocable upon 

the first spouse’s death, but the survivor’s trust was revocable. 

The assets allocated to the three trusts were required to be 

equivalent. As of January 2006, the Trust’s assets were worth 

over $72 million.4 (Key v. Tyler I, supra, B258055.)

Article Fourteen (Article 14) of the Trust contains a 

“Disinheritance and No Contest Clause” (No Contest Clause). 

That clause provides in pertinent part that, “if any devisee, 

legatee or beneficiary under this Trust . . . directly or indirectly 

(a) contests either Trustor’s Will, this Trust, any other trust 

created by a Trustor, or in any manner attacks or seeks to impair 

or invalidate any of their provisions, . . . then in that event 

Trustors specifically disinherit each such person, and all such 

legacies, bequests, devises, and interest given under this Trust to 

that person shall be forfeited as though he or she had 

predeceased the Trustors without issue, and shall augment 

proportionately the shares of the Trust Estate passing under this 

Trust to, or in trust for, such of Trustors’ devisees, legatees, and 

beneficiaries who have not participated in such acts or 

proceedings.”

Following Thomas’s death, Tyler, a lawyer, “actively sought 

to have Mrs. Plott amend the survivor’s trust to effectively 

exclude Key.” (Key v. Tyler I, supra, B258055.) Tyler was vicepresident of operations for the nursing home business and was a 

 

4 As mentioned in Key v. Tyler I, supra, B258055, the 

family’s nursing home business ultimately sold at a probate court 

auction for $55 million.
6

principle and founding member of Tyler & Wilson, the law firm 

that provided legal services to the business. Mrs. Plott depended 

on Tyler for information related to the business and for legal 

advice. Mrs. Plott also was dependent on Tyler to carry on the 

family business, which Mrs. Plott considered her legacy. Tyler 

“exploited her knowledge of the family nursing home business to 

manipulate Mrs. Plott.” (Ibid.)

Beginning in late 2006, Tyler actively participated in 

efforts to procure an amendment to the Trust that made 

significant changes to the distribution of the survivor’s trust. 

Tyler controlled the communications concerning the amendment 

between Mrs. Plott and Allan Cutrow, her estate planning 

lawyer, and with his firm, Mitchell, Silberberg & Knupp (MSK). 

Tyler was the “gatekeeper between MSK and Mrs. Plott.” Cutrow 

“was told to route all inquiries through Tyler & Wilson and not to 

contact Mrs. Plott directly.” (Key v. Tyler I, supra, B258055.)

Every meeting that Mrs. Plott attended with MSK concerning the 

2007 Amendment was also attended by Tyler or by Tyler’s 

associate. Tyler also “often created time pressure on Mrs. Plott 

by limiting Ms. Tyler’s availability or intentionally shortening 

the time in which to have meetings, thus putting pressure on 

decisions to be made by Mrs. Plott.”

During the drafting process, Tyler “actively revised” the 

2007 Amendment, “directly instructing Mr. Cutrow to include 

specific language and percentages in the final document.” The 

probate court found that there was “NO evidence that the [2007 

Amendment] represents the desires or choices of Mrs. Plott.” The 

court based that conclusion on the totality of the court’s findings 

concerning Tyler’s active procurement of the 2007 Amendment, 

“most importantly the lack of any evidence originating directly 
7

from Mrs. Plott without the participation or interference of Ms.

Tyler.”

The final 2007 Amendment unduly benefited Tyler. As 

amended in 2003, the Trust provided for an equal division of 

property between the three daughters. However, the 2007 

Amendment replaced the relevant provision of the Trust with a 

new distribution scheme that gave Tyler 65 percent of the 

business assets and Potz 35 percent. Key received a lump sum 

gift of $1 million. (Key v. Tyler I, supra, B258055.)

The 2007 Amendment also gave Tyler all the contents of 

Mrs. Plott’s residence, replacing a provision that personal 

property was to be split equally, or in “ ‘such manner as [the 

children] shall agree.’ ” And the 2007 Amendment purportedly 

forgave a $2.5 million debt that Tyler owed to the martial trust, 

effectively giving Tyler a benefit of $1,666,666 and imposing a 

loss on Key of $833,333. (Key v. Tyler I, supra, B258055.) The 

2007 Amendment included this loan forgiveness provision 

although Cutrow had told Mrs. Plott that the note was owned 

one-third by each daughter through the marital trust (which was 

irrevocable), and therefore could not be forgiven. The probate 

court found that there was “no competent evidence that Mrs. 

Plott wanted this term in the 2007 . . . Amendment.”

Mrs. Plott signed the 2007 Amendment on May 25, 2007. 

In 2010 she was diagnosed with dementia. She died on June 27, 

2011. (Key v. Tyler I, supra, B258055.)

2. Key’s Invalidity Petition

Key filed her Invalidity Petition on November 1, 2011.

Tyler opposed the petition. In her capacity as trustee, Tyler filed 

a response and objections to the Invalidity Petition in which she 

argued that Mrs. Plott “was not susceptible to any undue 
8

influence of others” and that Mrs. Plott’s “testamentary wishes 

were embodied in the 2007 Amendment.”

Tyler appeared at the trial on the Invalidity Petition 

through counsel both individually and in her capacity as trustee. 

She filed some pleadings in both capacities. Following a 17-day 

trial, the probate court issued its 67-page Statement of Decision 

stating its findings and granting the Invalidity Petition. This 

court issued its opinion affirming that decision on June 27, 2016. 

(Key v. Tyler I, supra, B258055.)

3. Tyler’s Anti-SLAPP Motion

Following remand, Key filed her No Contest Petition. Tyler 

responded with a motion to strike the entire petition under Code 

of Civil Procedure section 425.16, which the probate court heard 

on May 16, 2017.

The court ruled that the anti-SLAPP statute applies to 

actions to enforce a no contest clause. The court recognized that 

the anti-SLAPP procedure and a no contest enforcement action 

are in some ways “antithetical to one another.” However, the 

court concluded that Probate Code section 1000 makes the Code 

of Civil Procedure applicable to probate proceedings unless the 

Probate Code indicates otherwise, and there is “nothing in the no 

contest law, which says that it shouldn’t be subject to the antiSLAPP law.”

With respect to the second step of the anti-SLAPP 

procedure, the court found that Key failed to meet her burden to 

show a probability of success on her No Contest Petition. The 

court concluded that Key could not enforce the Trust’s No Contest 

Clause under section 21311 because Tyler “did not file a direct 

contest. Rather, she defended against a petition that Ms. Key 

filed.” The court also found that Key had not shown that Tyler 
9

lacked probable cause to defend the 2007 Amendment, as section 

21311 requires. The court noted that the prior judge who decided 

the Invalidity Petition had “indicated that it was a difficult case 

to decide, which, itself, gives this court, which did not try the 

case, some pause as to whether—how much of a slam dunk it was 

or . . . how much the defense was without probable cause.”5

4. Key’s Motion for Attorney Fees

Following remand, Key also filed a motion for the attorney 

fees she incurred in defending Tyler’s appeal of the probate 

court’s decision granting her Invalidity Petition. The probate 

court heard that motion along with the anti-SLAPP motion.

The court denied the motion. The court concluded that Key 

failed to show a legal basis for a fee award under any of the 

grounds that she raised, including Probate Code section 17211, 

subdivision (b); Civil Code section 1717; the “common benefit” 

theory; the court’s inherent power; or Code of Civil Procedure 

section 128.5. With respect to Civil Code section 1717, which 

addresses attorney fees authorized by contract, the court 

acknowledged that “a trust is a kind of contract.” However, the 

court concluded that the pleading on which Key prevailed was 

“not a breach of contract case. It was a trust case. It was that 

she exercised—or she could not prove that it was not without 

undue influence.”

DISCUSSION

1. The Anti-SLAPP Procedure

Code of Civil Procedure section 425.16 provides for a 

“special motion to strike” when a plaintiff asserts claims against 

 

5 By the time of the anti-SLAPP motion, the judge who had 

decided the Invalidity Petition, Judge Reva Goetz, had retired. 

The anti-SLAPP motion was heard by Judge David J. Cowan.
10

a person “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.” (Code Civ. Proc., § 425.16, subd. (b)(1).) Such 

claims must be stricken “unless the court determines that the 

plaintiff has established that there is a probability that the 

plaintiff will prevail on the claim.” (Ibid.)

Thus, ruling on an anti-SLAPP motion involves a two-step 

procedure. First, the “moving defendant bears the burden of 

identifying all allegations of protected activity, and the claims for 

relief supported by them.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 

396 (Baral).) At this stage, the defendant must make a 

“threshold showing” that the challenged claims arise from 

protected activity. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 

1056.)

Second, if the defendant makes such a showing, the 

“burden shifts to the plaintiff to demonstrate that each 

challenged claim based on protected activity is legally sufficient 

and factually substantiated.” (Baral, supra, 1 Cal.5th at p. 396.) 

Without resolving evidentiary conflicts, the court determines 

“whether the plaintiff’s showing, if accepted by the trier of fact, 

would be sufficient to sustain a favorable judgment.” (Ibid.) The 

plaintiff’s showing must be based upon admissible evidence. 

(HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 

204, 212.) Thus, the second step of the anti-SLAPP analysis is a 

“summary-judgment-like procedure at an early stage of the 

litigation.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 

Cal.4th 180, 192.) In this step, a plaintiff “need only establish 

that his or her claim has ‘minimal merit’ [citation] to avoid being 

stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif 
11

(2006) 39 Cal.4th 260, 291, quoting Navellier v. Sletten (2002) 29 

Cal.4th 82, 89.)

Code of Civil Procedure section 425.16, subdivision (e) 

defines the categories of acts that are in “ ‘furtherance of a 

person’s right of petition or free speech.’ ” Those categories 

include “any written or oral statement or writing made before a 

legislative, executive, or judicial proceeding, or any other official 

proceeding authorized by law,” and “any written or oral 

statement or writing made in connection with an issue under 

consideration or review by a legislative, executive, or judicial 

body, or any other official proceeding authorized by law.” (Code 

Civ. Proc., § 425.16, subd. (e)(1)–(2).) An appellate court reviews 

the grant or denial of an anti-SLAPP motion under the de novo 

standard. (Park v. Board of Trustees of California State 

University (2017) 2 Cal.5th 1057, 1067 (Park).)

2. The Enforceability of No Contest Clauses

Both parties cite to the history of legislation governing no 

contest clauses for its relationship to the anti-SLAPP statute and 

for its relevance to determining whether the No Contest Clause is 

enforceable against Tyler. We therefore briefly describe 

pertinent portions of that history.

A no contest clause operates as a disinheritance device:

“ ‘[I]f 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), quoting Burch v. George (1994) 7 Cal.4th 246, 

265.) “Such clauses promote the public policies of honoring the 

intent of the donor and discouraging litigation by persons whose 
12

expectations are frustrated by the donative scheme of the 

instrument.” (Donkin, at p. 422.)

These policies are in tension with 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.” (Donkin, supra, 58 Cal.4th at p. 422.) 

The common law of California balanced these interests by 

permitting the enforcement of no contest clauses so long as they 

were “ ‘not prohibited by some law or opposed to public policy.’ ” 

(Ibid., quoting In re Estate of Kitchen (1923) 192 Cal. 384, 389.) 

Because they cause a forfeiture, such clauses were strictly 

construed. (Kitchen, at pp. 389–390.)

The Legislature partially codified the law concerning no 

contest clauses in 1989. (Donkin, supra, 58 Cal.4th at p. 422.) 

Part of the codification included the establishment of a “safe 

harbor” declaratory relief procedure. (Id. at p. 423, fn. 6.) Using

that procedure, a beneficiary could “apply to the court for a 

determination whether a particular motion, petition, or other act 

by the beneficiary would be a contest within the terms of a no 

contest clause.” (Former § 21305, subd. (a); Stats. 1989, ch. 544, 

§ 19.) A no contest clause was not enforceable against such an 

application so long as it “did not require a determination of the 

merits of the motion, petition, or other act by the beneficiary.” 

(Former § 21305, subd. (b); Stats. 1989, ch. 544, § 19.)

The statutory scheme governing no contest clauses became 

increasingly complex over the next several decades. (Donkin, 

supra, 58 Cal.4th at pp. 423–424.) The Legislature enacted 

amendments “specifically identifying various types of claims for 

which a safe harbor proceeding was expressly available and 

further identifying specific types of actions against which a no 
13

contest clause was not enforceable.” (Id. at p. 423.) The 

complexity led to uncertainty, which also contributed to the 

number of safe harbor declaratory relief applications. The 

frequency of such applications “added an additional layer of 

litigation to probate matters, which undermined the goal of a no 

contest clause in reducing litigation by beneficiaries.” (Id. at 

p. 424.)

In 2008 the Legislature adopted recommendations of the 

California Law Revision Commission (Commission) by repealing 

the law on no contest provisions and enacting a new set of 

statutes. (Donkin, supra, 58 Cal.4th at p. 426; Stats. 2008, ch. 

174, §§ 1, 2, p. 567.) The new legislation simplified the 

regulatory regime by more narrowly defining the types of 

challenges that could be subject to a no contest clause, replacing 

“the existing ‘open-ended definition of “contest,” combined with a 

complex and lengthy set of exceptions.’ ” (Donkin, at pp. 425–

426, quoting Recommendation: Revision of No Contest Clause 

Statute (Jan. 2008) 37 Cal. Law Revision Com. Rep. (2007) p. 392

(Commission 2007 Recommendation).) The new statutes 

precluded the enforcement of no contest clauses against an 

“indirect” contest (i.e., a contest that indirectly “ ‘attacks the 

validity of an instrument by seeking relief inconsistent with its 

terms’ ”). (Donkin, at p. 424, quoting Johnson v. Greenelsh (2009) 

47 Cal.4th 598, 605; Donkin, at p. 426.) The new legislation also 

discontinued the safe harbor procedure. (Donkin, at p. 427.)

Under current law, a no contest clause is enforceable 

against a “direct contest that is brought without probable cause.” 

(§ 21311, subd. (a)(1).) Section 21310, subdivision (b) defines a 

“direct contest.” The definition includes a “contest that alleges 

the invalidity of a protected instrument or one or more of its 
14

terms” based upon the “revocation of a trust pursuant to Section 

15401.” (§ 21310, subd. (b)(5).) “Contest” is defined as “a 

pleading filed with the court by a beneficiary that would result in 

a penalty under a no contest clause, if the no contest clause is 

enforced.” (§ 21310, subd. (a).) A “pleading” is further defined as 

a “petition, complaint, cross-complaint, objection, answer, 

response, or claim.” (§ 21310, subd. (d).)

3. The Anti-SLAPP Statute Applies to Key’s 

No Contest Petition

There is no dispute that Key’s No Contest Petition arises 

from statements made “before a . . . judicial proceeding” and “in 

connection with an issue under consideration or review by a . . .

judicial body.” (Code Civ. Proc., § 425.16, subd. (e)(1)–(2).) Key’s 

No Contest Petition challenges Tyler’s judicial defense of the 

2007 Amendment against Key’s successful effort to obtain a 

declaration that the amendment was invalid. The No Contest 

Petition is based on the theory that Tyler’s judicial defense of the 

2007 Amendment contested the validity of the Trust provisions 

that the amendment purported to alter, therefore authorizing

Tyler’s disinheritance under the Trust’s No Contest Clause and

Probate Code sections 21310 and 21311.

Thus, Key’s No Contest Petition challenges Tyler’s 

litigation conduct. That is necessarily so because section 21310 

specifically defines a “contest” as a “pleading filed with the court.” 

Unless proceedings to enforce no contest provisions are excluded 

from the scope of the anti-SLAPP statute, Tyler has met her 

burden under step one of the anti-SLAPP procedure to show that 

Key’s petition arises from protected conduct.

Key claims that the anti-SLAPP statute does not apply to 

petitions to enforce no contest clauses because the anti-SLAPP 
15

procedure is inconsistent with the probate statutes governing 

such clauses. Key points out that the purpose of the anti-SLAPP 

procedure is to weed out meritless claims arising from protected 

conduct by permitting a challenge to such claims at the beginning 

of a lawsuit. Such a challenge necessarily involves “an additional 

layer of litigation, with associated costs and delays.” She argues 

that this additional litigation is inconsistent with the 

Legislature’s intent to streamline the resolution of no contest 

petitions by eliminating the safe harbor procedure in the prior 

law.

Division Five of this district recently rejected a similar 

argument. In Urick v. Urick (2017) 15 Cal.App.5th 1182 (Urick), 

the court held that “the plain language of the anti-SLAPP statute 

applies” to petitions to enforce no contest clauses. (Id. at 

p. 1186.) The court concluded that, although “[t]here may be 

valid reasons to exempt enforcement of no contest clauses from 

the anti-SLAPP statute,” it is for the Legislature to make that 

decision. (Id. at p. 1195.)

We agree with the court in Urick. Unlike certain other 

kinds of actions, the anti-SLAPP statutory scheme does not 

create any exception to the anti-SLAPP procedure for actions to 

enforce no contest clauses. (See Code Civ. Proc., § 425.17, subds. 

(b)–(c) [establishing exceptions for actions brought in the public 

interest and for certain actions based upon commercial speech].) 

A judicial challenge to a trust or other protected instrument 

involves a “writing made before a . . . judicial proceeding.” (Code 

Civ. Proc., § 425.16, subd. (e)(1).) An action to enforce a no 

contest provision is necessarily based upon such conduct, and 

therefore falls within the express statutory definition of conduct 
16

that arises from protected petitioning conduct under step one of 

the anti-SLAPP procedure.

While Key presents reasonable arguments for why the antiSLAPP statute should not apply to actions to enforce no contest 

provisions, those arguments are for the Legislature to consider. 

Key points out that, based upon the statutory definition of a 

“contest” as a “pleading,” all actions to enforce no contest clauses 

will necessarily be subject to the anti-SLAPP procedure. While 

that is so, it is simply another way of saying that all actions to 

enforce no contest provisions arise from protected petitioning 

conduct. The protection of such conduct is of course one of the 

goals of the anti-SLAPP statute, which our Legislature has 

directed “shall be construed broadly.” (Code Civ. Proc., § 425.16, 

subd. (a).) In light of that legislative directive and the stated 

purpose of the anti-SLAPP statute, we cannot say that this result 

is so “absurd” as to be “clearly contrary to the Legislature’s 

intent.” (Urick, supra, 15 Cal.App.5th at p. 1195, quoting Cassel 

v. Superior Court (2011) 51 Cal.4th 113, 136.)

Our Supreme Court rejected similar arguments in Jarrow 

Formulas, Inc. v. La Marche (2003) 31 Cal.4th 728 (Jarrow) in 

holding that the anti-SLAPP statute applies to malicious 

prosecution actions. The court recognized that “section 425.16 

potentially may apply to every malicious prosecution action, 

because every such action arises from an underlying lawsuit, or 

petition to the judicial branch.” (Id. at pp. 734–735.) 

Nevertheless, the court concluded that the “ ‘plain language of 

the statute establishes what was intended by the Legislature.’ ” 

(Id. at p. 735, quoting People v. Statum (2002) 28 Cal.4th 682, 

690.) The court also noted that giving effect to the plain 

statutory language “accords with the Legislature’s specific 
17

decision not to include malicious prosecution claims in the 

statutory list of actions to which ‘[t]his section shall not apply.’ ” 

(Jarrow, at p. 735, quoting Code Civ. Proc., § 425.16, subd. (d).)

Key also argues that the “availability of the anti-SLAPP 

procedure may result in the filing of non-meritorious contest 

litigation” because an unsuccessful contestant can use an antiSLAPP motion to “evade the consequences of a meritless contest.” 

The conclusion is questionable because a meritless contest will 

still be actionable if there is evidence in the second step of the 

anti-SLAPP procedure showing that the contestant lacked 

probable cause to bring the contest. In any event, if the 

Legislature concludes that the anti-SLAPP procedure tilts the 

balance involved in the regulation of no contest clauses too far 

away from “discouraging litigation” and too far toward promoting 

“full access of the courts to all relevant information,” it can 

change the law. (Donkin, supra, 58 Cal.4th at p. 422.)

Key also makes various statutory interpretation arguments 

that she claims the court in Urick did not consider. First, she 

points out that the court in Urick correctly noted that the 

“ ‘general rules of the Code of Civil Procedure do not apply when 

the Probate Code provides special rules.’ ” (Urick, supra, 15 

Cal.App.5th at pp. 1194–1195, quoting Swaithes v. Superior 

Court (1989) 212 Cal.App.3d 1082, 1088–1089; see Prob. Code,

§ 1000.)6 She argues that the court in Urick incorrectly applied 

 

6 Section 1000, subdivision (a) provides that, except to the 

extent that the Probate Code provides applicable rules, “the rules 

of practice applicable to civil actions . . . apply to, and constitute 

the rules of practice” in proceedings under the Probate Code. 

That subdivision also directs that “[a]ll issues of fact joined in 

probate proceedings shall be tried in conformity with the rules of 

practice in civil actions.”
18

that rule because it mistakenly concluded that “no provision of 

the Probate Code has been shown to be inconsistent with the 

anti-SLAPP provisions.” (Urick, at p. 1195.)

Key argues that section 1022 creates such inconsistency. 

That section provides that “[a]n affidavit or verified petition shall 

be received as evidence when offered in an uncontested 

proceeding under this code.” Key claims that this provision is 

inconsistent with the anti-SLAPP statute because, by 

implication, it precludes the use of affidavits in contested 

proceedings, and a contested anti-SLAPP motion involves the use 

of affidavits.7 We do not find an inconsistency that would 

preclude the use of the anti-SLAPP procedure in probate matters.

Key cites Estate of Bennett (2008) 163 Cal.App.4th 1303 

(Bennett) for the proposition that section 1022 prohibits the use of 

affidavits for any contested motion under the Probate Code. We 

do not believe the holding in that case stretches that far.

In Bennett, the probate court granted a motion to set aside 

a settlement agreement on the ground that it was the result of 

fraud and duress and provided inadequate consideration. The 

court ruled on the parties’ declarations, rejecting the respondent’s 

argument that the motion involved “ ‘factual issues which require 

determination after [a] full evidentiary hearing during which 

documentary evidence and testimony will have to be presented.’ ” 

(Bennett, supra, 163 Cal.App.4th at p. 1307.) The appellate court 

reversed. The court first noted that “[i]t has long been the rule” 

in probate matters that “ ‘affidavits may not be used in evidence 

unless permitted by statute.’ ” (Bennett, at pp. 1308–1309, 

 

7 Our discussion of affidavits applies equally to 

declarations, which are the statutory equivalent of affidavits. 

(Code Civ. Proc., § 2015.5.)
19

quoting Estate of Fraysher (1956) 47 Cal.2d 131, 135.) The court 

rejected the petitioners’ argument that Code of Civil Procedure 

section 2009 provided authority to decide the motion based upon 

the declarations, interpreting Probate Code section 1022 to 

authorize the use of declarations “only in an ‘uncontested 

proceeding.’ ”

8 (Bennett, at p. 1309.)

The “contested proceeding” at issue in Bennett was a 

motion in which the facts asserted in the declarations were 

contested. It is logical to conclude that, by authorizing the use of 

affidavits in “uncontested proceedings,” section 1022 is at least

impliedly inconsistent with the use of affidavits to decide 

contested facts. However, the anti-SLAPP procedure does not 

require—or even permit—a court to decide contested facts based 

upon affidavits. Rather, like a motion for summary judgment, a 

motion to strike under the anti-SLAPP statute requires a court 

simply to determine whether the plaintiff’s showing, “if accepted 

by the trier of fact,” would be sufficient to sustain a favorable 

judgment. (Baral, supra, 1 Cal.5th at p. 396.) Such a decision 

must be made without resolving evidentiary conflicts. (Ibid.) 

Section 1022 does not conflict with the use of affidavits in such a 

procedure, where the truth of the facts themselves are not 

contested.

At a minimum, section 1022 is not so clearly inconsistent 

with the anti-SLAPP procedure that one may infer from that 

section that the Legislature intended to exclude probate 

proceedings from the scope of the anti-SLAPP statute. Section 

1000 explains that the rules applicable to civil actions apply to 

probate proceedings “[e]xcept to the extent that this code provides 

 

8 Code of Civil Procedure section 2009 permits the use of 

affidavits for a number of purposes, including “upon a motion.”
20

applicable rules.” The Probate Code does not itself provide rules 

for anything akin to an anti-SLAPP procedure, or indeed any 

other procedure for a preliminary determination of the strength 

of a petitioner’s case prior to deciding disputed facts. Under 

section 1000, the absence of such rules in the Probate Code 

suggests that the anti-SLAPP statute should apply.

This conclusion is consistent with the widespread use of the 

summary judgment procedure in probate matters. Like the antiSLAPP statute, the statute governing summary judgment 

motions specifically provides for the use of affidavits. (See Code 

Civ. Proc., §§ 425.16, subd. (b)(2), 437c, subd. (b)(1).) And, like 

the anti-SLAPP statute, the summary judgment statute does not 

permit the determination of contested facts based upon the 

affidavits, but allows a motion to be granted only if there is “no 

triable issue as to any material fact.” (Code Civ. Proc., § 437c, 

subd. (c).) Despite Probate Code section 1022, summary 

judgment proceedings in probate court are commonplace. (See, 

e.g., Estate of Duke (2015) 61 Cal.4th 871, 877 [appeal from 

summary judgment in probate court]; Katzenstein v. Chabad of 

Poway (2015) 237 Cal.App.4th 759, 764 [probate court denied a 

motion for summary judgment and granted a motion for 

summary adjudication]; Estate of Molino (2008) 165 Cal.App.4th 

913, 921 [appeal from a summary judgment entered by the 

probate court]; Estate of Myers (2006) 139 Cal.App.4th 434, 436 

[same]; Estate of Coleman (2005) 129 Cal.App.4th 380, 385 

[same]; Estate of Cleveland (1993) 17 Cal.App.4th 1700, 1703–

1704 [same]; Estate of Lane (1970) 7 Cal.App.3d 402, 404 [same]; 

see also Ross & Cohen, Cal. Practice Guide: Probate (The Rutter 

Group 2018) ¶ 15:228, p. 15-102 [“A motion for summary 
21

judgment may, in an appropriate case, be particularly attractive 

to will proponents facing a will contest”].)

Key presents another statutory interpretation argument 

based upon the wording of the anti-SLAPP statute itself. That 

statute states that a “cause of action against a person” arising 

from protected conduct is subject to a special motion to strike. 

(Code Civ. Proc., § 425.16, subd. (b)(1), italics added.) Key argues 

that this language limits the anti-SLAPP procedure to actions 

that are in personam in nature, making it inapplicable to actions 

under the Probate Code, which have the character of in rem 

proceedings. (See Estate of Wise (1949) 34 Cal.2d 376, 385 [an 

heirship decree is “ ‘not against persons as such, but against or 

upon the thing or subject matter itself’ ”], quoting 11A Cal.Jur. § 

73, p. 135.)

This argument, while intriguing, reads too much into the 

use of the term “person” in the statute and ultimately is 

inconsistent with the purpose of the anti-SLAPP procedure. The 

anti-SLAPP statute itself does not distinguish between in rem 

and in personam actions. It requires only that a cause of action 

against a “person” arise from a protected “act of the person.” An 

action can arise from the personal exercise of a protected 

constitutional right whether the action is intended to impose 

damages for an alleged tort or to adjudicate the person’s right to 

property.

Actions to enforce no contest clauses illustrate the point. 

While such actions determine the right to inherit particular 

property, by definition they also challenge the exercise of a 

specific protected constitutional right—the right to petition the 

government through the courts. Protecting that right from

lawsuits that threaten to chill its exercise is of course an 
22

expressed purpose of the anti-SLAPP statute. (Code Civ. Proc.,

§ 425.16, subd. (a).) The threat of facing a petition seeking 

forfeiture of an inheritance is certainly capable of chilling resort 

to the judicial process; indeed, that is the point of a no contest 

clause.

Key’s argument that the anti-SLAPP statute should not 

apply to probate proceedings because they are in rem in nature 

also ignores that actions under the Probate Code can include the 

prospect of significant personal damages based upon individual 

conduct. In particular, section 859 permits damages of “twice the 

value of the property recovered by an action under this part” as 

well as attorney fees following a finding that a “person” has 

disposed of a decedent’s property “by the use of undue influence 

in bad faith or through the commission of elder or dependent 

financial abuse.” Such an action seeking individual damages 

cannot fairly be characterized as anything other than an action 

“against a person,” regardless of whether the underlying probate 

proceedings are conceptually in rem. (See Greco v. Greco (2016) 2 

Cal.App.5th 810, 825–826 [applying the anti-SLAPP statute to a 

probate petition that asserted a claim for misrepresentations by a 

trustee].)

Like the court in Urick, we “appreciate the strength of the

argument” in favor of exempting actions to enforce no contest 

provisions from the scope of the anti-SLAPP statute. (Urick, 

supra, 15 Cal.App.5th at p. 1186.) However, the decision to 

create such an exemption involves policy judgments that are the 

province of the Legislature to make. None of Key’s arguments 

provides a ground to ignore the plain language of the anti-SLAPP 

statute, which applies by its terms to an action such as this. We 

therefore conclude that Tyler met her burden under step one of 
23

the anti-SLAPP procedure to show that Key’s No Contest Petition

arises from protected conduct.

4. Key Has Sufficiently Shown a Probability of 

Success Under the Second Step of the 

Anti-SLAPP Procedure

Having decided that Tyler has met her burden to show that 

Key’s claim arises from protected conduct, we must determine 

whether Key has met her burden under step two of the antiSLAPP procedure to show a probability that she will prevail on 

her No Contest Petition. We conclude that she has.

Tyler presents a number of legal challenges to the viability 

of Key’s petition. First, Tyler argues that a “direct contest” under 

section 21310 must involve conduct that initiates a judicial action 

to obtain “affirmative relief.” Thus, she claims that her defense of 

the 2007 Amendment against Key’s effort to invalidate it was not 

a direct contest challenging the validity of any Trust provisions. 

Second, she claims that she filed her pleadings defending the 

2007 Amendment in her capacity as a trustee, and her conduct 

therefore does not meet the statutory definition of a contest as a 

“pleading filed with the court by a beneficiary.” (§ 21310, subd. 

(a), italics added.) Finally, she claims that her conduct in 

defending the 2007 Amendment was protected by the litigation 

privilege. We reject each of these legal arguments.

We also conclude that Key has provided adequate 

evidentiary support for the merits of her No Contest Petition. 

Tyler claims that Key did not support her anti-SLAPP opposition 

with admissible evidence. However, such evidence exists in the 

form of the probate court’s Statement of Decision and this court’s 

opinion affirming it. The facts established by those decisions are 

sufficient to show a probability of success on Key’s petition.
24

A. Tyler’s judicial defense of the 2007 

Amendment was a “direct contest” of the 

Trust provisions that the 2007 Amendment 

purported to replace.

Tyler’s defense of the 2007 Amendment clearly falls within 

the scope of the Trust’s No Contest Clause. As discussed above, 

Article 14 of the Trust operates to “specifically disinherit” any 

“devisee, legatee or beneficiary” who “contests either Trustor’s 

Will, this Trust, any other trust created by a Trustor, or in any 

manner attacks or seeks to impair or invalidate any of their 

provisions.” By obtaining the 2007 Amendment through undue 

influence and then defending that amendment in court, Tyler 

sought to “impair” and “invalidate” the provisions of the original 

Trust that the 2007 Amendment purported to replace. The No 

Contest Clause therefore disinherits Tyler if it is enforceable 

against her.

Under section 21311, the No Contest Clause was 

enforceable only if Tyler’s conduct amounted to a “direct contest” 

of the Trust brought without probable cause. Section 21310 

defines a “direct contest” as a contest that “alleges the invalidity 

of a protected instrument or one or more of its terms” based on 

certain enumerated grounds, including the “revocation of a trust 

pursuant to Section 15401.”9 (§ 21310, subd. (b)(5).)

 

9 Section 15401 provides that a trust may be revoked by 

complying with any method provided in the trust instrument, or, 

unless the trust explicitly provides the only method of revocation, 

by delivering a writing signed by the settlor to the trustee. 

(§ 15401, subd. (a)(1)–(2).) The power of revocation includes the 

power to modify. (§ 15402; Heifetz v. Bank of America Nat. Trust 

& Sav. Assn. (1957) 147 Cal.App.2d 776, 781–782.)
25

Tyler’s defense of the 2007 Amendment, had it been 

successful, would have had the effect of revoking paragraph C of 

article four of the Trust, which the 2007 Amendment purported 

to replace. Although the 2007 Amendment was labeled an 

amendment, by making that change its effect was to revoke Key’s 

right to inherit 33 1/3 percent of the estate through the residual 

Trust and to replace it with the right to inherit “the lesser of 

$1,000,000, or 5% of the then Survivor’s Trust Estate less any 

amount owed on any outstanding promissory note in favor of the 

Surviving Trustor.” (See Key v. Tyler I, supra, B258055.) The 

effect of this change is what matters, not the label attached to it. 

(See Urick, supra, 15 Cal.App.5th at pp. 1187, 1197 [rejecting the 

argument that the trustee’s petition to “reform the trust” did not 

seek to invalidate it, and concluding that the effect of her action 

“controls over the label that she gave to the remedy she sought”].)

Tyler’s pleadings defending the 2007 Amendment by 

“alleg[ing] the invalidity of a protected instrument” (i.e., the 

original Trust) therefore met the statutory definition of a direct 

contest. (§ 21310, subds. (a)–(b). Nothing in the language of 

sections 21310 or 21311 suggests that a direct contest is limited 

to an action that a beneficiary initiates. To the contrary: 

Pleadings amounting to a “contest” under section 21310 can 

include responsive pleadings such as a “cross-complaint, 

objection, answer [or] response.” (§ 21310, subd. (d).)

Nor is there any reason to assume that the Legislature 

intended such a limitation. As Key points out, a trustee does not 

need judicial assistance to alter the provisions of a trust through 

deceptive or manipulative conduct, such as a fraudulent 

revocation or, as here, an amendment obtained through undue 

influence. Because a trust is designed to be administered by a 
26

trustee outside of probate, any judicial contest concerning a 

trustee’s improper attempt to alter the trust will ordinarily be 

initiated by a beneficiary who is adversely affected by the 

trustee’s conduct. In that case, the trustee’s defense of a bogus 

change presents no less a threat to the settlor’s intent for the 

distribution of his or her property than a judicial contest initiated 

by a beneficiary who is unhappy with the original trust terms.

This conclusion is also supported by the case law. In Estate 

of Gonzalez (2002) 102 Cal.App.4th 1296 (Gonzalez), a beneficiary 

presented a 1998 will for probate that he had obtained from his 

father through undue influence. The will purported to replace a 

1992 will that contained a no contest clause. The appellate court 

concluded that, by offering the 1998 will to probate, the 

beneficiary brought a “contest” seeking revocation because “the 

1998 will revoked all prior wills, including the 1992 will with the 

no contest clause.” (Id. at p. 1303.) Similarly, here, Tyler’s 

attempt to enforce the 2007 Amendment that she obtained 

through undue influence amounted to a direct contest seeking 

revocation of the pertinent terms in the original Trust.10

The court in Gonzalez cited Estate of Bergland (1919) 180 

Cal. 629 (Bergland). In that case, a beneficiary unwittingly 

offered a forged will for probate that purported to supersede prior 

wills, one of which included a no contest clause. The court held 

 

10 The trial court distinguished Gonzalez on the ground 

that it was decided before the change in the governing law in 

2010. Tyler makes the same argument on appeal. However, the 

court’s reasoning in Gonzalez—that judicial action to enforce a 

new instrument obtained through undue influence amounts to a 

“contest” challenging the validity of the original instrument—

applies equally to the definition of a direct contest under current 

law. (Gonzalez, supra, 102 Cal.App.4th at p. 1303.)
27

that the daughter’s attempt in good faith to probate the later will 

did not fall within the forfeiture clause. (Id. at p. 634.) However, 

the court also noted that, “[i]f an attempt were made knowingly

to probate a spurious will of a later date which purported to 

distribute the testator’s estate in a manner different from that of 

the genuine will, such an attempt would quite certainly come 

within the language of the forfeiture clause as an attempt to 

defeat the provisions of the will.” (Ibid., italics added.)

11

That principle applies here. Tyler defended a spurious 

Trust amendment in court in an attempt to defeat the provisions 

of the original Trust. For purposes of enforcing the No Contest 

Clause, it does not matter that Tyler’s attempt to enforce the 

spurious amendment through judicial proceedings began with a 

petition filed by Key.

 

11 The holding in Bergland was incorporated into the initial 

1989 legislation codifying the enforcement of no contest clauses. 

(See Recommendation Relating to No Contest Clauses (Jan. 1989) 

20 Cal. Law Revision Com. Rep. (1990) (Revision Report) pp. 12–

13; former § 21306, Stats. 1989, ch. 544, § 19.) The Commission 

characterized Bergland as holding that “a no contest clause is not 

enforceable against a person who, in good faith, contests a will on 

the ground of . . . revocation by execution of a subsequent will.” 

(Revision Report, at pp. 12–13 & fn. 9.) That description of the 

good faith exception presumes that revocation through an 

attempt to enforce a subsequent bogus instrument would 

otherwise trigger a no contest provision. In place of a good faith 

exception, the new legislative scheme provided that a no contest 

clause was not enforceable against contests based on forgery or 

revocation that were brought with probable cause. (See former 

§ 21306; Stats. 1989, ch. 544, § 19.)
28

B. Tyler defended the validity of the 2007 

Amendment in her capacity as a 

beneficiary.

Tyler’s argument that she defended the 2007 Amendment 

only in her capacity as a trustee is contradicted by the record. 

Tyler submitted various trial pleadings, including her trial brief, 

“individually” and as the trustee. In addition, following the trial, 

Tyler submitted a 33-page “Request for Statement of Decision or, 

Alternatively, Objections to Proposed Statement of Decision.” 

The document was signed by “Attorneys for Respondent 

Elizabeth Plott Tyler, as an individual,” as well as by Tyler 

herself as “successor trustee In Pro Per.” (Italics added.) The 

objections disputed the evidentiary basis for the probate court’s 

undue influence findings by defending the fairness of the 2007 

Amendment, attacking the bases for the court’s conclusion that 

Plott was susceptible to undue influence, and defending the 

propriety of Tyler’s conduct.

More fundamentally, under the facts established by the 

prior trial Tyler’s conduct benefited her personally to the 

detriment of her duties as a trustee. A trustee is obligated to 

deal impartially with beneficiaries. (§ 16003.) Tyler obtained a 

trust amendment through undue influence that revoked the bulk 

of the bequest to one of the beneficiaries―her sister Key. As this 

court found, the evidence at the trial “supports the trial court’s 

finding that the [2007] Amendment is nothing but [Tyler’s] desire 

to benefit herself.” (Key v. Tyler I, supra, B258055.) And, as 

discussed below, the facts established by the prior proceeding are 

sufficient to support a prima facie case that Tyler defended the 

2007 Amendment without probable cause to do so.
29

It is the effect of Tyler’s conduct that establishes whether 

she defended the 2007 Amendment solely in her capacity as a 

disinterested trustee, not the titles on the pleadings that she 

filed. In Urick, the court concluded there was prima facie 

evidence that the trustee/beneficiary in that case (Dana) filed a

reformation petition in her capacity as a beneficiary. The court 

noted that the “petition was consistent with the interests of Dana 

as a beneficiary, not with her fiduciary duties as a trustee to the 

beneficiaries.” (Urick, supra, 15 Cal.App.5th at p. 1196.) 

Similarly, here, Tyler’s defense of the 2007 Amendment was 

consistent with her own interests as a beneficiary, not with her 

duty as a trustee to deal impartially with Key. Her pleadings 

defending the 2007 Amendment therefore were sufficient to 

trigger enforcement of the No Contest Clause.

C. The litigation privilege does not apply to 

actions to enforce no contest provisions.

Civil Code section 47, subdivision (b) codifies a privilege 

that applies to a “publication or broadcast” made as part of a 

“judicial proceeding.” (Civ. Code, § 47, subd. (b).) The principle

purpose of this litigation privilege is to “afford litigants and 

witnesses [citation] the utmost freedom of access to the courts 

without fear of being harassed subsequently by derivative tort 

actions.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 213 

(Silberg).)

The privilege applies to all tort actions except malicious 

prosecution. (Silberg, supra, 50 Cal.3d at p. 216.) Malicious 

prosecution actions are excluded because the “ ‘policy of 

encouraging free access to the courts . . . is outweighed by the 

policy of affording redress for individual wrongs when the 

requirements of favorable termination, lack of probable cause, 
30

and malice are satisfied.’ ” (Ibid., quoting Albertson v. Raboff 

(1956) 46 Cal.2d 375, 382.)

Key argues that the litigation privilege does not apply to 

actions to enforce no contest clauses because its application 

would nullify the statutory scheme permitting such actions. We 

agree.

Our Supreme Court has held that the litigation privilege 

does not apply to various proceedings in which its application

would make more specific statutes “significantly or wholly 

inoperable.” (Action Apartment Assn., Inc. v. City of Santa 

Monica (2007) 41 Cal.4th 1232, 1246.) For example, the privilege 

does not apply to prosecutions for perjury, subornation of perjury, 

false report of a criminal offense, and “ ‘attorney solicitation 

through the use of “runners” or “cappers.” ’ ” (Ibid.) The court 

has recognized these exceptions because of the “ ‘rule of statutory 

construction that particular provisions will prevail over general 

provisions.’ ” (Ibid., quoting In re James M. (1973) 9 Cal.3d 517, 

522.)

Courts of Appeal have applied the same principle in other 

contexts where the privilege would abrogate statutes that 

specifically permit particular claims. In Komarova v. National 

Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, the court held 

that the privilege did not apply to actions for violations of the 

Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788 

et seq.). (Komarova, at p. 330.) The court concluded that, by 

prohibiting particular litigation activity in connection with debt 

collections, that act was more specific than the litigation 

privilege, and that applying the privilege would make the act 

“significantly inoperable.” (Id. at pp. 339–340.)
31

In Begier v. Strom (1996) 46 Cal.App.4th 877 (Begier), the 

court applied a similar rationale in holding that the litigation 

privilege did not apply to making knowingly false police reports 

of child abuse. Such reports are covered by a specific statute 

(Pen. Code, § 11172), which imposes liability for damages caused 

by submitting knowingly false reports. (Id. at p. 884.) The court 

concluded that applying the litigation privilege to that conduct 

would “essentially nullify the Legislature’s determination that 

liability should attach.” (Begier, at p. 885.)

Similarly, here, applying the litigation privilege to actions 

to enforce no contest provisions would nullify the specific Probate 

Code statutes governing the enforcement of such provisions. 

Because section 21310 defines a “contest” as a “pleading,” if the 

litigation privilege applied to actions to enforce no contest clauses 

the privilege would always provide a defense to conduct for which 

section 21311 would otherwise permit a forfeiture. In this case, 

the specific statutes in the Probate Code prevail over the 

litigation privilege to “avoid rendering a statute meaningless and 

ineffective.” (Begier, supra, 46 Cal.App.4th at p. 885.)

D. Key provided sufficient evidence showing a

probability that her petition will succeed.

As discussed above, Tyler’s pleadings defending the 2007 

Amendment constituted a “direct contest” of the Trust under 

section 21310, subdivision (b). Under section 21311, subdivision 

(a), Key will prevail on her petition if Tyler brought the direct 

contest “without probable cause.”

The parties have raised a threshold issue concerning who 

bears the burden of proof on the issue of probable cause under 

section 21311. The issue is apparently one of first impression. 
32

While the issue is not dispositive on this appeal, it will arise on 

remand and we therefore consider it.

i. Key has the burden of proof to show 

that Tyler lacked probable cause to 

defend the 2007 Amendment.

The general rule in a civil action is that a party has the 

burden of proof “as to each fact essential to his claim for relief.” 

(Estate of Della Sala (1999) 73 Cal.App.4th 463, 470 

(Della Sala).) This principle is embodied in Evidence Code 

section 500, which provides that, “[e]xcept as otherwise provided 

by law, a party has the burden of proof as to each fact the 

existence or nonexistence of which is essential to the claim for 

relief or defense that he is asserting.” The Probate Code does not 

establish any contrary rule, and Evidence Code section 500 

therefore applies to probate actions under Probate Code section 

1000. (Della Sala, at pp. 469–470.)

The language of section 21311 suggests that the absence of 

probable cause is an essential element of Key’s claim. Under 

section 21311, subdivision (a), a no contest clause may “only be 

enforced” against three specific categories of contests, including a 

“direct contest that is brought without probable cause.” (§ 21311, 

subd. (a)(1), italics added.) Thus, the statute requires proof that 

a particular contest falls within the limited class of contests that 

the law makes subject to no contest clauses.

This language is inconsistent with Key’s argument that 

probable cause is an affirmative defense because it “is an 

exception to enforcement of a no contest clause.” The Legislature 

could have used different language establishing a presumption 

that a direct contest is subject to a no contest clause “except for” a 

direct contest brought with probable cause. It did not do so. 
33

Instead, section 21311, subdivision (a)(1) makes the absence of 

probable cause a requirement for enforcement.

Placing the burden on the one seeking enforcement of a no 

contest clause is also consistent with the nature of the relief the 

moving party is requesting. The party attempting to enforce a no 

contest clause seeks forfeiture of a bequest that the decedent 

otherwise intended for the person who allegedly violated the 

clause. The “public policy to avoid a forfeiture” underlies the 

requirement that a no contest clause be strictly construed. 

(§ 21312; Commission 2007 Recommendation, supra, at p. 379.) 

A similar policy to keep the threat of forfeiture from inhibiting 

access to the courts underlies the probable cause requirement. 

(See Recommendation Relating to No Contest Clauses (Jan. 1989) 

20 Cal. Law Revision Com. Rep. (1990) p. 11 [“In favor of a 

probable cause exception are the policy of the law to facilitate full 

access of the courts to all relevant information concerning the 

validity and effect of a will, trust, or other instrument, and to 

avoid forfeiture”].) That policy counsels in favor of placing the 

burden of proof on the party who is seeking the “harsh penalty” of

forfeiture. (See Commission 2007 Recommendation, supra, at pp. 

369–370.)

Evidence Code section 520 also supports assigning the 

burden of proof to the party who claims that a beneficiary 

brought a contest without probable cause to do so. Section 520 of 

the Evidence Code states that a “party claiming that a person is 

guilty of crime or wrongdoing has the burden of proof on the 

issue.” The allegation that a person has pursued baseless 

litigation is an accusation of wrongdoing. (See Western Land 

Office, Inc. v. Cervantes (1985) 175 Cal.App.3d 724, 740 [“A 

tenant who claims his landlord acted with a retaliatory motive 
34

accuses the landlord of wrongdoing” and therefore has the burden 

of proof on that issue under Evid. Code, § 520].)

In the similar context of malicious prosecution claims, the 

plaintiff has the burden to prove the defendant lacked probable 

cause to bring the underlying action. (Parrish v. Latham & 

Watkins (2017) 3 Cal.5th 767, 771 [“To establish liability for the 

tort of malicious prosecution, a plaintiff must demonstrate, 

among other things, that the defendant previously caused the 

commencement or continuation of an action against the plaintiff 

that was not supported by probable cause”]; Kassan v. Bledsoe 

(1967) 252 Cal.App.2d 810, 812 [“The plaintiff in an action for 

malicious prosecution bears the burden of proving not only 

termination of the earlier proceedings in his favor, but also lack 

of probable cause on the part of defendants”].) Like a proceeding 

to enforce a no contest clause, a malicious prosecution action 

involves allegations of baseless litigation. And, like the probable 

cause element in section 21311, the requirement to prove the lack 

of probable cause in malicious prosecution actions exists to “avoid 

improperly deterring individuals from resorting to the courts for 

the resolution of disputes.” (Sheldon Appel Co. v. Albert & Oliker 

(1989) 47 Cal.3d 863, 875.)

Key cites Estate of Peterson (1999) 72 Cal.App.4th 431, 

which contains language suggesting that, to escape a no contest 

provision, the “contestant” of a will must prove that he or she had 

probable cause to bring the contest. However, the case does not 

explicitly concern the allocation of the burden of proof. More 

important, the case was decided under the prior regulatory 

regime, which, as discussed above, created categories of 

exceptions to the general rule that no contest clauses are 

enforceable. The statute in place at the time provided that a “no 
35

contest clause is not enforceable against a beneficiary to the 

extent the beneficiary, with probable cause, contests a provision

that benefits” persons in certain defined categories, including a 

person who drafted or transcribed the instrument. (Id. at p. 434, 

fn. 3, italics added.) The former statute identifying persons 

against whom a no contest provision is not enforceable might be 

consistent with an exception to enforceability that constitutes an 

affirmative defense; the current statute identifying the only 

contests that are subject to a no contest provision is more 

consistent with an element of a claim seeking to enforce such a 

provision.12

Key also argues that the burden of proof on the probable 

cause element should be placed on the person who brought a 

contest because that person will be better able to assess the “facts 

known to the contestant” at the time he or she filed the contest. 

(§ 21311, subd. (b).) However, as Witkin notes, the “greater 

knowledge” factor in assigning the burden of proof “does not . . . 

apply with any consistency.” (1 Witkin, Cal. Evidence (5th ed. 

2018) Introduction, § 12.) For example, that factor does not 

justify placing the burden on the defendant to prove probable 

cause in the analogous context of malicious prosecution actions. 

 

12 Key also cites a comment by the Commission concerning 

the proposed legislative changes in 2008 stating that “[p]robable 

cause is not a defense to the enforcement of a no contest clause” 

under subdivision (a)(2) and (3) of section 21311. (Commission 

2007 Recommendation, supra, at p. 403, italics added.) That 

subdivision is not at issue here. We do not interpret the 

Commission’s use of the word “defense” in describing the absence 

of an element in other provisions to be a description of the burden 

of proof applicable to the probable cause element in section 

21311, subdivision (a)(1).
36

Nor does it apply in a probate action brought by a child omitted 

from a decedent’s will. (See Della Sala, supra, 73 Cal.App.4th at 

p. 467 [rejecting the argument that “the burden of proof 

regarding ‘what “the decedent had in mind” ’ when executing a 

will that omits a living child should be borne by the estate or the 

beneficiary of the will, rather than by the omitted child ‘who 

would not have been on the scene’ ”].)

We therefore conclude that Key has the burden of proof to 

show that Tyler brought her contest of the Trust without 

probable cause. Nevertheless, as discussed below, we also 

conclude that Key sufficiently met her burden to show sufficient 

evidence supporting her petition in opposing Tyler’s anti-SLAPP 

motion.

ii. The probate court’s findings 

concerning Tyler’s undue influence 

are sufficient evidence of a 

probability of success.

Tyler had probable cause to contest the Trust by defending 

the 2007 Amendment if, at the time she brought the contest, she 

knew facts that “would cause a reasonable person to believe that 

there [was] a reasonable likelihood that the requested relief will 

be granted after an opportunity for further investigation or 

discovery.” (§ 21311, subd. (b).) In this case, the “requested 

relief” was a finding that the 2007 Amendment was valid.

Key argues that the probate court’s Statement of Decision 

granting Key’s Invalidity Petition and this court’s opinion 

affirming the probate court’s decision are sufficient to support a 

prima facie showing that Tyler lacked probable cause to defend 

the 2007 Amendment. We agree.
37

Tyler argues that these decisions do not satisfy Key’s 

burden to provide admissible evidence supporting a probability of 

success because the factual findings in those decisions establish 

only that the findings were made, not the facts themselves. 

Citing Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564–1566

(Sosinsky), Tyler asserts that a court “may take judicial notice 

only of the fact that the prior court made the findings in question, 

not of the truth of those facts.”

We agree with the general legal proposition. As the court 

explained in Sosinsky, the effect of taking judicial notice of the 

truth of facts in a prior court decision would remove an issue of 

fact from the current dispute “without resort to concepts of 

collateral estoppel or res judicata that would litigate whether the 

issue was fully addressed and resolved.” (Sosinsky, supra, 

6 Cal.App.4th at p. 1564; see Professional Engineers v.

Department of Transportation (1997) 15 Cal.4th 543, 590 [citing 

Sosinsky in explaining that “judicial notice of findings of fact does 

not mean that those findings of fact are true, but, rather, only 

means that those findings of fact were made”].)

However, this rule does not preclude Key from relying on 

the probate court’s prior findings as support for the merits of her 

No Contest Petition because collateral estoppel does apply here. 

The probate court (and this court) may properly consider the 

probate court’s prior findings on Key’s Invalidity Petition for 

purposes of determining the collateral estoppel effect of those 

findings. (Evid. Code, § 452, subd. (d); Frommhagen v. Board of 

Supervisors (1987) 197 Cal.App.3d 1292, 1299 [court may take 
38

judicial notice of court records in ruling on an issue of res 

judicata].)13

 

13 Contrary to Tyler’s argument, the Statement of Decision 

and this court’s prior opinion are also both properly part of the 

record on this appeal. Tyler herself submitted those decisions in 

support of her anti-SLAPP motion. Key also filed a request for 

judicial notice of both decisions in support of her opposition to the 

anti-SLAPP motion. Tyler objected to Key’s request for judicial 

notice, but only on the ground that “the court may take judicial 

notice only of the fact that the prior court made the findings in 

question, not of the truth or falsehood of those facts.” The 

Statement of Decision and this court’s prior opinion were before 

the trial court, and we therefore consider them as well.

Key also filed with this court a request for judicial notice of

the entire record from the prior appeal. Tyler opposes the 

request and argues that Key submitted only the Statement of 

Decision and this court’s prior opinion in support of her 

opposition to the anti-SLAPP motion. However, Tyler’s own 

notice of motion stated that her anti-SLAPP motion was based on 

the “files, records and pleadings of this action.” (See Larsen v. 

Johannes (1970) 7 Cal.App.3d 491, 496 [“The notice of motion 

indicated reliance upon all the files in this action, and the 

pleadings incorporating the documentation. This was sufficient 

to bring them before the court”]; Roth v. Plikaytis (2017) 15 

Cal.App.5th 283, 291–292 [abuse of discretion for trial court to 

refuse to consider previously filed documents that were 

incorporated by reference in support of a motion for attorney 

fees].) We therefore grant Key’s request for judicial notice of the 

record from the prior appeal. However, as discussed below, the 

Statement of Decision and this court’s prior opinion are 

themselves sufficient to identify binding findings that support a 

prima facie case under the second step of the anti-SLAPP 

procedure.
39

a. Key has properly raised 

collateral estoppel on appeal

Tyler claims that Key did not argue the collateral estoppel 

effect of the Statement of Decision below, pointing out that “the 

phrase ‘collateral estoppel’ is never used in her underlying brief.” 

However, Key did claim generally that “Tyler is estopped from 

denying her exercise of undue influence or claiming that she had 

any good faith belief or probable cause to believe that her 

objections to Ms. Key’s petition to invalidate the 2007 

amendment had a chance of success.” (Italics added.) Citing the 

Statement of Decision and this court’s prior opinion, she also 

argued that “Tyler is barred by the law of the case to deny that 

she exercised undue influence or to claim that she had probable 

cause to believe that she could prevail against Ms. Key. These 

matters have already been established and Tyler is bound by the 

adverse rulings made against her.”

While these references did not identify the doctrine of 

collateral estoppel (or issue preclusion) by name, they were 

certainly sufficient to apprise Tyler and the trial court of the 

substance of Key’s argument that Tyler is bound by the results of 

the prior trial. Thus, there is no unfairness in considering the 

argument on appeal. (See Nellie Gail Ranch Owners Assn. v. 

McMullin (2016) 4 Cal.App.5th 982, 997 [rule that theories not 

raised in the trial court cannot be asserted for the first time on 

appeal is based on fairness to the trial court and opposing 

litigants]; see also Dakins v. Board of Pension Commissioners 

(1982) 134 Cal.App.3d 374, 387 [evidence of prior administrative 

findings that a police officer’s injuries were “ ‘work-related’ ” and 

counsel’s arguments that the pension board should therefore 
40

consider the injuries as “ ‘service-connected’ ” were sufficient to 

raise the issue of collateral estoppel].)

Moreover, the issue that Key has raised on appeal is 

whether the findings in the Statement of Decision and in this 

court’s prior opinion are sufficient to support a prima facie claim 

that Tyler lacked probable cause to defend the 2007 Amendment. 

The contents of those decisions are not subject to dispute. No 

findings of fact were necessary in the trial court for this court to 

determine the issues that were litigated and decided in the prior 

trial based on the decisions themselves. (See Duran v. Obesity 

Research Institute, LLC (2016) 1 Cal.App.5th 635, 646 [“the 

appellate court has discretion to consider issues raised for the 

first time on appeal where the relevant facts are undisputed and 

could not have been altered by the presentation of additional 

evidence”].)

14

 

14 Tyler also argues that Key failed to show that collateral 

estoppel applied because she did not inform the trial court of the 

specific factual findings on which she relied and failed to offer the 

entire trial record to establish that the findings concerned issues 

that were actually litigated and necessarily decided. But Key did 

submit the Statement of Decision itself, which is relevant 

extrinsic evidence of the scope of the court’s prior decision. 

(McClain v. Rush (1989) 216 Cal.App.3d 18, 28, citing 7 Witkin, 

Cal. Procedure (3d ed. 1985) Judgments, § 256, p. 694.) In some 

cases—such as Santa Clara Valley Transportation Authority v. 

Rea (2006) 140 Cal.App.4th 1303, 1311–1312 (which Tyler 

cites)—it is necessary to review the record to determine whether 

an issue has been litigated and decided. But that is not so here, 

where the probate court issued a lengthy and detailed Statement 

of Decision identifying its findings and explaining their basis in 

the evidence.
41

b. The collateral estoppel effect of 

the Statement of Decision

Collateral estoppel (also known as issue preclusion) 

prevents relitigation of previously decided issues. (Samara v. 

Matar (2018) 5 Cal.5th 322, 326–327 (Samara).) Issue preclusion 

applies “ ‘(1) after final adjudication (2) of an identical issue 

(3) actually litigated and necessarily decided in the first suit and 

(4) asserted against one who was a party in the first suit or one in 

privity with that party.’ ” (Id. at p. 327, quoting DKN Holdings, 

LLC v. Faerber (2015) 61 Cal.4th 813, 824.) The doctrine of issue 

preclusion applies to final orders in proceedings under the

Probate Code. (Code Civ. Proc., § 1908, subd. (a)(1);

Conservatorship of Harvey (1970) 3 Cal.3d 646, 652; Noggle v. 

Bank of America (1999) 70 Cal.App.4th 853, 862.)

The identical issue requirement for issue preclusion 

addresses whether identical factual allegations are at stake, “not 

whether the ultimate issues or dispositions are the same.” 

(Lucido v. Superior Court (1990) 51 Cal.3d 335, 342 (Lucido).) 

And the “necessarily decided” prong means only that “ ‘the issue 

not have been “entirely unnecessary” to the judgment in the 

initial proceeding.’ ” (Ibid.)

Faced with a 67-page Statement of Decision containing a 

detailed collection of findings and an exhaustive discussion of the

evidence underlying those findings, the definition of an “issue” for 

purposes of issue preclusion becomes important. Because the 

Statement of Decision and this court’s prior opinion affirming 

that decision were the principle items of evidence that Key 

proffered to show a likelihood of success on her No Contest 

Petition, the nature of the facts that those decisions established 

is important to the outcome of Key’s appeal. The collateral 
42

estoppel effect of those decisions is also likely to be an issue on 

remand. We therefore begin by explaining the methodology that 

we conclude is appropriate to analyze what binding “issues” those 

decisions determined.

Not every interpretation of every item of evidence discussed 

in Judge Goetz’s description of her findings is necessarily binding 

under the doctrine of issue preclusion. Only findings on issues 

that are “not ‘. . . unnecessary’ ” to the court’s decision are 

binding. (Lucido, supra, 51 Cal.3d at p. 342 [fact that the 

prosecution failed to prove indecent exposure as a basis for a 

probation violation was “ ‘necessarily decided’ ” even though a 

probation violation was established through other, admitted 

conduct].)

On the other hand, findings that were important to the 

court’s decision may be binding even if they were not themselves 

dispositive of an ultimate legal issue. Some courts have

suggested that findings are binding under the doctrine of issue 

preclusion only if they determine issues of “ultimate fact.” (See, 

e.g., California Logistics, Inc. v. State of California (2008) 161 

Cal.App.4th 242, 249 [“Under the doctrine of collateral estoppel 

or issue preclusion, when an issue of ultimate fact has been 

determined by a valid and final judgment, that issue cannot be 

relitigated between the same parties in a future lawsuit,” italics 

added]; Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 

868, 881–882; King v. Timber Structures, Inc. (1966) 240 

Cal.App.2d 178, 183.) In some civil cases, courts have used the 

term “ultimate fact” while reciting the formulation of collateral 

estoppel as it is applied in criminal prosecutions. (See, e.g., 

California Logistics, at p. 249, citing Ashe v. Swenson (1970) 397 

U.S. 436; Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 
43

277, 286, quoting People v. Santamaria (1994) 8 Cal.4th 903, 912 

(Santamaria).)15 Other cases have used the term to distinguish

between factual findings on collateral evidentiary issues and 

findings that are relevant to the merits of the action. (See Ion 

Equipment, at pp. 881–882 [prior finding concerning the 

admissibility of a tape recording].)

When used to characterize the importance of factual issues 

decided in a prior proceeding, the distinction between “ultimate” 

and “evidentiary” facts is unhelpful and potentially misleading. 

As the Restatement Second of Judgments explains: “The line 

 

15 In the particular context of criminal prosecutions, the 

requirement that an issue concern an “ultimate fact” refers to the 

elements that must be proved in a second prosecution beyond a 

reasonable doubt. A finding in a prior prosecution showing that 

the state did not meet its burden to prove an issue beyond a 

reasonable doubt is not binding in a subsequent prosecution if 

that same issue need not be proved beyond a reasonable doubt in 

the subsequent prosecution. (See Santamaria, supra, 8 Cal.4th 

at pp. 921–922.) Thus, for example, evidence that a criminal 

defendant committed a prior crime may be admissible even if the 

defendant was acquitted of that crime because the prosecution 

would not have to prove that the defendant committed the prior 

crime beyond a reasonable doubt for evidence of the prior act to 

be admissible in a later prosecution for a different crime. (Id. at 

p. 921, citing Dowling v. United States (1990) 493 U.S. 342, 349.) 

And a jury’s verdict rejecting a sentencing enhancement based 

upon personal use of a knife does not preclude a subsequent 

murder prosecution based upon a theory of knife use where such 

knife use need not be proved for a murder conviction. 

(Santamaria, at pp. 921–922.) As these decisions demonstrate, 

the concept of “ultimate fact” in this context is actually based on 

differences in the burden of proof rather than on some abstract 

measure of the degree of importance of prior factual findings.
44

between ultimate and evidentiary facts is often impossible to 

draw. Moreover, even if a fact is categorized as evidentiary, great 

effort may have been expended by both parties in seeking to 

persuade the adjudicator of its existence or nonexistence and it 

may well have been regarded as the key issue in the dispute. In 

these circumstances the determination of the issue should be 

conclusive whether or not other links in the chain had to be 

forged before the question of liability could be determined in the 

first or second action.” (Rest.2d Judgments, § 27, com. j, p. 261.)

Under our Supreme Court’s description of the elements of 

issue preclusion, the relevant distinction is not between 

“ultimate” and “evidentiary” facts, but between findings that are 

unnecessary to a decision on the merits and those that support

that decision (i.e., are “not . . . unnecessary” to the court’s 

decision). (Lucido, supra, 51 Cal.3d at p. 342; Samara, supra, 5 

Cal.5th at p. 326.) Factual findings can support a decision on the 

merits of a claim even if they do not themselves resolve an 

element of the claim. (See Ayala v. Dawson (2017) 13 

Cal.App.5th 1319, 1331 [prior unlawful detainer proceeding 

necessarily decided the issue of title even though that issue is not 

ordinarily germane in such a proceeding]; Greene v. Bank of 

America (2015) 236 Cal.App.4th 922, 934–935 [magistrate’s 

credibility finding at a preliminary hearing in a prior criminal 

case was binding, as the magistrate’s probable cause 

determination was based on that finding].)

With this discussion in mind, we consider the collateral 

estoppel effect of the probate court’s order deciding Key’s 

Invalidity Petition by identifying express findings in the 

Statement of Decision concerning issues that were actually 
45

litigated and that support the decision. In doing so, we do not 

attempt to distinguish between evidentiary and “ultimate” facts.

The definition of probable cause in section 21311, 

subdivision (b) requires a court to consider what a “reasonable 

person” would believe based upon the “facts known to the 

contestant” at the time of filing a contest. The Statement of 

Decision contains a number of findings relating to the facts 

known to Tyler. These findings show that, at a minimum, the 

probate court’s prior order on Key’s Invalidity Petition 

established that:

Tyler knew that Mrs. Plott was dependent on her for 

important information related to the family nursing home 

business.

The probate court explained that Tyler “knew that Mrs. 

Plott was dependent on her, among others, and relied on her for 

information related to: [¶] 1) The business side of the business,

[¶] 2) Regulatory implementation and assessment of risk 

management, and [¶] 3) For legal advice related to litigation as 

these issues pertained to the businesses.”

Tyler knew that Mrs. Plott was vulnerable to Tyler’s threat 

to quit if Tyler did not obtain control over the family businesses 

after Mrs. Plott’s death.

The probate court found that Mrs. Plott was “depending on 

[Tyler] to carry on the family businesses which Mrs. Plott 

considered to be her legacy.”
46

Tyler controlled the communications between Mrs. Plott and 

her estate counsel.

The probate court found that “Tyler acted as a gatekeeper 

between MSK and Mrs. Plott, controlling Mrs. Plott’s 

communications with MSK and their access to her.” The court 

also found that “[a]ll affirmative communications addressing 

dispositive terms” of the 2007 Amendment came from Tyler, 

Tyler’s associate under her direction, or “Tyler testifying [as] to 

what Mrs. Plott said.”

Tyler actively participated in procuring the 2007 

Amendment.

The probate court found that Mrs. Plott did not attend any 

meetings with MSK related to the 2007 Amendment that were 

not also attended by Tyler or Tyler’s associate.

Although Mrs. Plott presented a strong personality, Tyler 

was able to overcome her will.

The probate court based this finding in part on Tyler’s 

conduct in “[b]ossing her mother around and losing her temper,” 

including using her “ ‘scary, yelling tone.’ ” The court concluded 

that Mrs. Plott was “vulnerable in the area of her business needs 

and dependence on . . . Tyler’s assistance with them.” (Italics 

added.)

Tyler obtained undue benefits under the 2007 Amendment.

The probate court found that the 2007 Amendment made 

Tyler the beneficiary of all the contents of the Plotts’ residence, 

which was “contrary to all dispositive terms previously expressed 

by Mrs. Plott.” The court also found that Tyler obtained an 
47

undue benefit from the 2007 Amendment “in that she was gifted 

business assets from the remainder of the Survivor’s Trust in the 

amount of 65%,” whereas the “prior testamentary plan called for 

the assets to be divided equally between the three daughters.” 

And the court found that Tyler, “by manipulating how the 

business assets were allocated into the Survivor’s Trust, ensured 

that the Survivor’s Trust was valued in an amount that was out 

of proportion to the other trusts, thus increasing Ms. Tyler’s 

interest in the overall Trust estate.”

Mrs. Plott made testamentary gifts benefiting Tyler in the 

2007 Amendment that Mrs. Plott knew were not hers to give.

The probate court found that a provision in the 2007 

Amendment distributing promissory notes to Tyler and Potz had 

the effect of canceling those notes. As mentioned, at the time of 

trial, Tyler owed almost $2.5 million in principal and interest on 

one of those notes. The court found that Mrs. Plott “was aware 

that the notes were in the Marital Trust,” which was irrevocable, 

“yet she included these in the [2007] Amendment anyway.” As 

this court concluded, through this device Tyler “received a benefit 

of $1,666,666, and Key suffered a loss of $833,333.” (Key v. Tyler

I, supra, B258055.)

Tyler’s personal financial difficulties gave her the motive to 

unduly influence Mrs. Plott.

The financial difficulties included her default on her 

$2.5 million loan, on which she had made no payments since her 

father’s death.
48

Tyler intentionally withheld relevant evidence.

Based upon evidence of Tyler & Wilson’s document 

retention, the documents produced by Tyler & Wilson, and the 

documents produced by MSK, the probate court found that Tyler 

“intentionally did not produce relevant evidence in an effort to 

prevent relevant evidence from being discovered related to 

determining the validity of the [2007] Amendment.” (See Key v. 

Tyler I, supra, B258055 [Tyler “failed to produce e-mails to hide 

her involvement”].)

The probate court on remand may identify additional 

relevant facts established by the court’s prior ruling under the 

issue preclusion principles discussed above. However, the

findings summarized above alone are sufficient to support 

reversal.

A court could reasonably infer from these findings that 

Tyler acted intentionally in manipulating Mrs. Plott and in using 

“excessive persuasion” on her to obtain terms in the 2007 

Amendment that were not the result of Mrs. Plott’s free will. 

(Welf. & Inst. Code, § 15610.70, subd. (a); Prob. Code, § 86.) 

Indeed, this court previously drew such an inference from the 

evidence in affirming the probate court’s invalidity ruling. In our 

prior opinion, we explained that “[i]t is reasonable to infer that 

Mrs. Plott allowed [Tyler] to have her way because [Tyler] 

threatened to quit and cause the family business to fail. Or 

[Tyler] made Mrs. Plott’s life miserable, causing Mrs. Plott to 

sign the [2007] Amendment ‘to keep peace’. . . . This is evidence 

of an overborne will that makes the transfer to [Tyler] unfair. 

[Tyler’s] controlling and even threatening demeanor with her 

elderly parent, coupled with [Tyler’s] personal involvement in 
49

drafting the [2007] Amendment, is evidence that the unequal 

division of assets contemplated by the [2007] Amendment was 

solely [Tyler’s] plan, not Mrs. Plott’s.” (Key v. Tyler I, supra, 

B258055, italics added.)

Based on these inferences, a court could find that a

reasonable person in Tyler’s position would not have believed 

there was a “reasonable likelihood” that the 2007 Amendment 

was valid. These findings are sufficient to meet Key’s burden 

under step two of the anti-SLAPP procedure.

We emphasize that the probate court’s prior order is not 

sufficient in itself to establish that Tyler lacked probable cause as 

a matter of law. The legal standard for invalidating an 

instrument based upon undue influence and the standard for 

finding a lack of probable cause to believe the instrument was 

valid are different. (See Jarrow, supra, 31 Cal.4th at p. 742 

[summary judgment in favor of the defense on an underlying 

claim does not establish lack of probable cause as a matter of law 

for purposes of a subsequent malicious prosecution action].)

The findings that the probate court made in issuing its 

prior order also do not establish the lack of probable cause as a 

matter of law.16 Although the factual findings themselves are 

 

16 On the other hand, we reject Tyler’s argument that the 

probate court’s findings establish the presence of probable cause 

as a matter of law. Tyler relies on comments that the trial court 

made during oral arguments on the Invalidity Petition to the 

effect that it was a “ ‘very hard case’ ” and was “ ‘not a clear-cut 

decision.’ ” The probate court’s oral comments were not final 

findings and cannot impeach the court’s subsequent written 

ruling. (Silverado Modjeska Recreation & Park Dist. v. County of 

Orange (2011) 197 Cal.App.4th 282, 300; Jespersen v. ZubiateBeauchamp (2003) 114 Cal.App.4th 624, 633.) In its final 
50

binding, the probate court in the prior trial was not asked to 

decide the issue of probable cause and therefore did not draw any 

inferences specifically related to that issue. However, the 

established facts are sufficient to establish at least a prima facie 

case that Tyler lacked probable cause.17

5. Key Is Entitled to Her Legal Fees for the Prior 

Appeal

Key raises various theories supporting her claim for 

attorney fees for the prior appeal and for her argument that the 

probate court erred in denying her motion for those fees. We 

need consider only one. The plain language of Article 14 of the 

Trust, as interpreted above, provides for payment of her litigation 

expenses in resisting Tyler’s contest of the Trust provisions.

We reject Tyler’s claim that Key did not argue below that 

the Trust “is contractually obligated to pay her fees.” She made 

precisely that argument. In her motion for attorney fees, Key 

 

Statement of Decision, the court found that the “evidence is 

substantial and overwhelmingly establishes that the 2007 . . . 

Amendment is the product of undue influence.” The court also 

stated its conclusion that the evidence of undue influence would 

be sufficient under a “clear and convincing evidence” standard. 

In ruling on Tyler’s anti-SLAPP motion, the probate court erred 

in taking judicial notice of the prior judge’s oral comments 

without considering whether they contradicted the court’s final, 

written decision.

17 Because the preclusive effect of the probate court’s order 

on Key’s Invalidity Petition is sufficient to meet her burden 

under step two of the anti-SLAPP procedure, we need not 

consider the admissibility or probative value of the Statement of 

Decision apart from its relevance to the issues that were 

previously litigated and decided.
51

pointed out that a “trust agreement is a contract,” and she 

identified the same language in Article 14 that she cites on 

appeal as the basis for a fee award. She then argued that she 

was entitled to her attorney fees under Civil Code section 1717 

because she had “prevailed in this action on the contract.” 

Although in the probate court she cited the reciprocal attorney 

fee portion of Civil Code section 1717 as authorization for a fee 

award, that section also provides general authority for the 

enforcement of an attorney fee provision in a contract. Her 

argument below was sufficient to raise the issue for the probate

court’s consideration.18

In any event, as discussed below, Key’s argument raises a 

legal issue concerning the interpretation of a trust instrument 

that does not depend upon any disputed facts. We may consider 

that argument for the first time on appeal. (Blech v. Blech (2018) 

25 Cal.App.5th 989, 1000, fn. 31 (Blech).)

“A declaration of trust constitutes a contract between the 

trustor and the trustee for the benefit of a third party. . . . The 

mutual consent of the parties to the express declaration of trust 

constitutes a contract between them, each having rights and 

obligations which may be enforced by the other and by the 

beneficiary designated in the contract.” (Estate of Bodger (1955) 

130 Cal.App.2d 416, 424–425.) Absent disputed extrinsic 

evidence, the interpretation of a trust instrument is an issue of 

law that we consider independently. (Blech, supra, 25 

 

18 We also reject Tyler’s argument that Key’s attorney fees 

motion was untimely. She made that argument below and the 

trial court implicitly rejected it by considering the motion on the 

merits. Tyler does not identify any abuse of discretion in that 

decision and we therefore will not reconsider it on appeal.
52

Cal.App.5th at pp. 1001–1002.) The parties do not identify any 

relevant extrinsic evidence here, and we therefore consider the 

interpretation of the Trust de novo.

As mentioned, Article 14 contains the Trust’s no contest 

provision. After setting forth the terms of that provision, the 

article states that “[e]xpenses to resist any contest or attack [of] 

any nature upon any provision of this Trust shall be paid from 

the Trust Estate as expenses of administration.” As discussed 

above, Tyler’s defense of the 2007 Amendment amounted to a 

contest of the Trust provisions in her capacity as a beneficiary. 

Given the placement of this language at the conclusion of the 

Trust’s No Contest Clause, it is clear that “expenses” in that 

context encompass litigation expenses, including attorney fees. 

Key incurred litigation expenses, including attorney fees on 

appeal, in “resist[ing]” Tyler’s attack on the Trust.

The language in Article 14 authorizing the payment of 

expenses in resisting a contest is not limited to expenses of the 

trustee. As Key points out, reimbursement of a trustee’s 

litigation expenses are addressed in a different provision of the 

Trust. We interpret the Trust’s provisions as a whole and seek to 

avoid an interpretation that would make any provision 

surplusage. (See § 21121; Blech, supra, 25 Cal.App.5th at p. 

1001; Estate of Lindner (1978) 85 Cal.App.3d 219, 225.) Article 

14 therefore authorizes reimbursement of Key’s attorney fees in 

defending Tyler’s contest, and the trial court erred in denying 

Key’s motion.

On remand, the probate court shall consider the reasonable 

amount of fees to award to Key under Article 14 for her defense of 

the prior appeal. Pursuant to that article, the fees are to be 

awarded “from the Trust Estate as expenses of administration.” 
53

However, the trial court has discretion under principles of equity 

to direct that the beneficiary responsible for the expenses of the 

litigation be solely responsible for their reimbursement. (Estate 

of Ivy (1994) 22 Cal.App.4th 873, 883 [“ ‘Where the expense of 

litigation is caused by the unsuccessful attempt of one of the 

beneficiaries to obtain a greater share of the trust property, the 

expense may properly be chargeable to that beneficiary’s 

share’ ”], quoting Fratcher, Scott on Trusts (4th ed. 1988) § 188.4, 

p. 69, fn. omitted.) On remand the trial court should therefore 

consider whether Key’s attorney fees should be paid only from 

Tyler’s portion of the Trust estate (if any).19

 

19 Tyler claims that any enforcement of the No Contest 

Clause should be against her portion of the survivor’s trust only. 

We decline to decide that issue, which relates to the scope of 

permissible relief under Key’s No Contest Petition rather than 

the probate court’s decision granting Tyler’s anti-SLAPP motion 

that is the subject of this appeal.
54

DISPOSITION

The probate court’s orders (1) striking Key’s No Contest 

Petition under Code of Civil Procedure section 425.16 and 

(2) denying Key’s motion for attorney fees on appeal are reversed. 

The case is remanded for further proceedings on Key’s petition 

and for determination of Key’s reasonable attorney fees in 

defending Tyler’s appeal in case No. B258055. On remand, the 

trial court shall determine whether those fees are to be paid 

solely from Tyler’s share of the Trust estate (if any). Key is 

entitled to her costs on this appeal.

CERTIFIED FOR PUBLICATION.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

HOFFSTADT, J.