Filed 6/26/24 In re Levine Trust CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

IN RE THE MATTER OF THE WILLIAM 

DAVID LEVINE TRUST DATED 

DECEMBER 14, 1993, AS AMENDED

VICTOIRE HOVLAND,

Defendant and Appellant,

v.

GREGORY LEVINE et al., as CoTrustees,

Plaintiffs and Respondents.

B323405 c/w B327909

(Los Angeles County

Super. Ct. No.

22STPB01905)

APPEALS from orders of the Superior Court of Los Angeles 

County, Mark S. Priver and Jonathan L. Rosenbloom, Judges. 

Affirmed in part and reversed in part.
2

Honey & Copp and Jennifer M. Honey; Shindler Eyrich and 

John F. Eyrich for Defendant and Appellant.

Weinstock Manion, Jessica G. Babrick and Andrew G. 

Smith for Plaintiffs and Respondents.

__________________________

This appeal arises in probate proceedings regarding the 

trust of decedent, William David Levine. Pursuant to a 

premarital agreement with his wife, Victoire Hovland (Wife), all 

of Decedent’s property was to be treated as separate property. In 

Decedent’s trust, he planned for Wife (now 82 years old) to 

receive a life estate in their home, with the remainder interest –

as well as the vast bulk of his other assets – to go to his adult 

children from a prior marriage, Kimberly Ashley and Gregory 

Levine (Children). Children were appointed co-trustees of his 

estate. The premarital agreement required Decedent to ensure 

that Wife could remain in the house without paying houserelated expenses, such as property taxes, insurance and 

maintenance. The means by which Decedent provided for 

payment of these expenses required some level of cooperation 

between Wife and Children following his death. That cooperation 

was not forthcoming, with each side accusing the other of 

attempting to claim more than their share of the estate. While 

Decedent’s estate was large enough to satisfy the needs of all 

parties, settlement – although initially attempted – proved 

elusive, and the matter ultimately descended into litigation.

This appeal concerns but one small part of the ongoing war. 

At one point, in response to ongoing hostilities, Wife filed two 

Creditor’s Claims against Decedent’s estate, seeking amounts 

concededly in excess of what she was due at the time. Children, 
3

as trustees, rejected the claims, and Wife did not further pursue 

them, choosing instead to seek relief through different types of 

Probate petitions. Decedent’s trust contained a no contest clause, 

which could be triggered by filing a Creditor’s Claim without 

probable cause – although, as we shall discuss, Wife was 

exempted from this clause to some, highly disputed, degree. 

Children filed a petition seeking to have Wife disinherited from 

Decedent’s trust, making no mention of the exemption. Wife 

responded with an anti-SLAPP motion,1arguing the 

disinheritance petition arose out of her petitioning activity (the 

Creditor’s Claims) and Children could not establish minimal 

merit due to her exemption. The trial court denied the motion, 

concluding the exemption clause did not bar Children’s 

disinheritance petition in its entirety. The court then awarded 

Children attorney’s fees, on the basis that Wife’s pursuit of the 

anti-SLAPP motion was frivolous. Wife appeals both orders. We 

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Relevant Documents2

Our discussion of the relevant documents includes three 

documents: the Premarital Agreement; an irrevocable life 

1

Code of Civil Procedure, section 425.16. SLAPP refers to 

Strategic Lawsuit Against Public Participation. (Baral v. Schnitt

(2016) 1 Cal.5th 376, 381, fn. 1.)

2

It is not our task, on the present appeal, to interpret the 

terms of the governing documents. Our discussion of their 

provisions, unless otherwise indicated, is merely intended to set 

forth the background for the current dispute, and should not be 

interpreted as any binding opinion on their meaning. 
4

insurance trust, which the parties call, the “ILIT”; and the 

Decedent’s Trust.

A. The Premarital Agreement

On December 8, 2000, just prior to their marriage, 

Decedent and Wife, with the advice of independent counsel, 

entered into the Premarital Agreement. Both spouses had two 

children from prior marriages. Under the agreement, each 

spouse was to keep their property as separate property, including 

property acquired during marriage, although husband’s salary 

was to go into an account to pay joint living expenses. 

As to the home, Decedent owned it going into the marriage. 

He agreed to execute documents that would provide Wife with a 

life estate in the house upon his death, subject to the following 

terms and conditions: "During [Wife’s] life estate, she shall have 

no obligation to pay for any expense relating to [the house] 

including, but not limited to, debt service, taxes, maintenance 

and insurance.” The terms and conditions regarding Wife’s life 

estate also stated that Decedent “is able to obtain a policy 

insuring his life in the amount of $2,000,000 at premium rates 

acceptable to him in his sole judgment,” but did not otherwise 

indicate what was to be done with the life insurance policy.

B. The ILIT

A few months after executing the Premarital Agreement, 

Decedent executed the irrevocable ILIT, identifying Children as 

the trustees. The ILIT stated that its primary purpose was “to 

provide the means and methods by which [Decedent] may satisfy 

the obligations incurred by him pursuant to the terms of the 
5

Premarital Agreement.”3The schedule of property initially 

included in the ILIT is not part of the record on appeal. However, 

it appears that the ILIT initially held a $2,000,000 life insurance 

policy, and later, an additional $6,000,000 life insurance policy.

The ILIT provided that, upon decedent’s death, the trustees 

were to collect all insurance proceeds. For as long as Wife 

retained her life estate in the house, the trustees of the ILIT were 

to pay to the trustees of Decedent’s Trust (as it happens, Children 

were trustees of both) “so much of the income and principal of the 

[ILIT] Trust Estate as is necessary to pay for any sums due on 

account of any note(s) secured by any deed(s) of trust 

encumbering the [r]esidence as well as any sums due on account 

of real property taxes, maintenance and insurance directly 

related to the [r]esidence.” Following Wife’s death (or any other 

termination of her life estate), the balance of the ILIT was to be 

paid to Children and/or their issue.

The ILIT contained a no contest provision. The no contest 

provision of the ILIT is not at issue in this case; Children’s 

disinheritance petition concededly sought to disinherit Wife from 

Decedent’s Trust only, not the ILIT. Nonetheless, we mention 

the no contest provision from the ILIT because it specifically 

contemplated disinheriting Wife, by name – the clause stated it 

applied to “[Wife] or any beneficiary.”4

3

This was not the sole purpose of the ILIT; it was also to 

provide income and security for Decedent’s children and 

grandchildren. 

4

Specifically, it provided, “If [Wife] or any beneficiary under 

this Trust Agreement in any manner, directly or indirectly, 

contests or attacks this Trust Agreement, any of its provisions, 

any provision of Trustor’s Will, or any provision of another trust 
6

C. Decedent’s Trust

We are concerned with an amended and restated version of 

Decedent’s Trust, purportedly executed a little over a year prior

to the Premarital Agreement. 

Decedent’s Trust references the Premarital Agreement, and 

in the Trust, Decedent, “ratifies and confirms the terms of the 

Premarital Agreement and, notwithstanding any provision of this 

instrument to the contrary, directs the Trustee to carry out the 

terms of the Premarital Agreement, to the extent such terms are 

binding on this Trust.” 

To that end, Decedent’s Trust provided that, upon his 

death, his trustees (who were, again, Children) should set aside, 

in a separate “Marital Trust” the Trust’s interest in the house, to 

be administered as provided in Article VII of the Trust. We will 

return to Article VII in a moment; we must mention a few other 

provisions first. Wife was to receive, outright, all “furniture, 

furnishings, and equipment and other tangible items of domestic 

or household use” contained in the house; this is the “Household 

Items” provision. Everything else in the estate – outside of the 

Marital Trust and the Household Items gift, was to go either to 

Children or into a Family Trust, which would itself be broken 

into subtrusts for decedent’s Children and other issue (we refer to 

these subtrusts collectively as “Family Trusts”). 

agreement established by Trustor, then [Wife] or such beneficiary 

shall thereby absolutely forfeit any and all beneficial interests 

which [Wife] or such beneficiary might otherwise have under this 

Trust Agreement and the interest of [Wife] or such beneficiary 

shall thereafter be distributed as if [Wife] or such beneficiary 

were deceased.” 
7

We return to the provisions of Article VII, the 

administration of the Marital Trust. Wife was granted an 

exclusive right to reside in the house rent-free. In addition, the 

article confirmed that mortgage, property taxes, maintenance 

and insurance on the house were to be paid from the ILIT. It 

continued that (i) all other house-related expenses, as determined 

by the trustees in their discretion; (ii) legal, accounting, and 

administrative expenses attributable to the Marital Trust; and 

(iii) all ILIT expenses to the extent ILIT is exhausted shall all be 

paid from the Family Trusts. Wife would pay these expenses 

only to the extent the Family Trusts are exhausted. The Marital 

Trust has three co-trustees: Wife and Children. 

Decedent’s Trust contained a no contest clause in Article 

XXIII. It provided as follows: “If any beneficiary (a ‘Contesting 

Beneficiary’) under a Protected Instrument [including Decedent’s 

Trust and subtrusts, and the Premarital Agreement], 

individually or in combination with any other person, directly or 

indirectly, initiates or participates in any of the following without 

Probable Cause: [¶] (a) the filing of a Direct Contest; [¶] (b) the 

filing of a Pleading in any court to challenge a transfer of 

property on the grounds that it was not the transferor’s property 

at the time of the transfer; and [¶] (c) the filing of a Creditor’s 

Claim or the prosecution of any action based upon a Creditor’s 

Claim . . . in the Trustor’s probate estate, against the Trustee of 

this Trust or any trust created under this Trust, or against a 

beneficiary of any such trust, [¶] then any share or interest in the 

trust estate, any bequest or devise and any trust created under 

this Trust, provided to or established for the benefit of the 

Contesting Beneficiary, is revoked.” The no contest provision 

defines “probable cause” as existing “if, at the time of filing a 
8

Contest, the facts known to the Contesting Beneficiary would 

cause a reasonable person to believe that there is a reasonable 

likelihood that the requested relief will be granted after an 

opportunity for further investigation or discovery.” 

The no contest clause contains the following exemption: 

“[T]his Article shall not be applicable to [Wife] with respect to the 

[Marital Trust].” 

2. Decedent’s Death and the Dispute

Decedent died December 17, 2020. He left a substantial 

estate.5 Wife and Children clashed over the distribution of the 

estate. According to Children, Wife was seeking reimbursement 

for personal expenses unrelated to the maintenance of the 

residence. According to Wife, Children were threatening to file a 

petition to transfer the proceeds from the $6,000,000 insurance 

policy from the ILIT into the Decedent’s Trust.6 

5

The record does not specifically indicate the size of the 

estate. However, in October 2019, decedent applied for the 

$6,000,000 life insurance policy which was added to the ILIT. In 

that application, he identified a net worth in excess of 

$47,000,000, of which nearly $21,000,000 was real estate, with no 

mortgages. 

6

Although it is not entirely clear in the record, it appears 

that Wife may have been of the belief that she was entitled to the 

income from the ILIT during her lifetime, with only the

remaining principal going to Children after her death. Children 

believed Wife was only entitled to such payments from the ILIT 

as were necessary to cover the mortgage, taxes, insurance, and 

maintenance on the residence.
9

At one point, it seemed that a settlement was near, as the 

parties worked toward an agreement which would guarantee 

sufficient funds to pay all house-related expenses while allowing 

Children to access any excess income generated by the ILIT. But 

it was not to be.7

3. The Creditor’s Claims

On November 2, 2021, Wife filed two Creditor’s Claims, on 

Judicial Council-approved forms, entitled “Creditor’s Claim.” A 

Creditor’s Claim is “a demand for payment for any of the 

following, whether due, not due, accrued or not accrued, or 

contingent, and whether liquidated or unliquidated: [¶] (1) 

Liability of the decedent, whether arising in contract, tort, or 

otherwise. . . .” Pursuant to Probate Code, section 9151, 

subdivision (a), a creditor’s claim “shall be supported by the 

affidavit of the creditor or the person acting on behalf of the 

creditor stating: [¶] (1) The claim is a just claim. [¶] (2) If the 

claim is due, the facts supporting the claim, the amount of the 

claim, and that all payments on and offsets to the claim have 

been credited. [¶] (3) If the claim is not due or contingent, or the 

amount is not yet ascertainable, the facts supporting the claim. 

7 We cannot say exactly what precipitated the breakdown in 

settlement communications and ultimate filing of the Creditor’s 

Claims. In Wife’s declaration in support of her anti-SLAPP 

motion, Wife recounts that, on December 20, 2021, decedent’s son 

“broke into [her] home” and was waiting in the garage to speak 

with her when she returned from walking her dog – conduct 

which frightened her and led her to obtain a restraining order 

against him. She went on to state that she filed her Creditor’s 

Claims in January 2022. But the Creditor’s Claims are filestamped November 2, 2021, several weeks before the purported 

break-in. 
10

[¶] (4) If the affidavit is made by a person other than the 

creditor, the reason it is not made by the creditor.”

In her first Creditor’s Claim, Wife sought $1,000,000. She 

indicated the claim arose on December 8, 2020, just prior to 

decedent’s death. In the space for her to include the facts 

supporting her claim, she described the Premarital Agreement 

and her right to live in the house free from expenses. She 

conceded that, since decedent’s death, she had, in fact, been 

living in the home, and all tax and insurance payments had been 

made. She stated, however, that she “has been denied various 

routine expenses and has become embroiled in multiple disputes 

concerning the assets from which these expenses were to be 

satisfied, the administration of the trusts for her benefit and 

hostilities from her stepchildren whom are now successor 

trustees of the trusts providing for Claimant for her surviving 

lifetime. Claimant bears mounting legal fees and may be 

required to compel her fiduciaries to enforce and honor the 

contractual rights provided for her. Decedent’s children have also 

objected to and intimidated Claimant as she maintains the home. 

Petitioner is an octogenarian living in an oceanfront home 

estimated at Twenty Million Dollars ($20,000,000) which is 

uniquely costly to maintain. To date, ongoing expense requests 

have been either denied, delayed or required intervention of 

counsel.”8

8

The Creditor’s Claim refers to exhibits A-D, “attached 

hereto,” which are not part of our record or otherwise identified. 

The second Creditor’s Claim, simultaneously filed, also refers to 

exhibits A-D, and identifies them as the Premarital Agreement, 

Decedent’s Trust, the ILIT, and Decedent’s will. There is no 

indication that exhibits A-D attached to the first claim were 
11

In her second Creditor’s Claim, Wife sought $2,000,000. 

She indicated the claim arose on February 2, 2021, after 

decedent’s death. She explained that this was the date she 

received notification that Decedent’s Trust became irrevocable. 

Her explanation of the facts supporting her claim was that she 

“has determined that Section 7.2.3 of the Trust sets forth 

circumstances under which Claimant would be personally 

responsible for residence expenses.[9] Pursuant to the Premarital 

Agreement, Claimant is not required to pay any expense relating 

to the residence for her remaining lifetime. The clause violates 

Claimant’s vested contractual rights and must be stricken.” In 

addition, Wife represented that Decedent’s Trust “is subject to 

early termination by its beneficiaries leaving Claimant 

vulnerable to inadequate or nonexistent trust res available to 

satisfy residence expenses during her remaining years. The trust 

requires reformation, security or guarantees to confirm ample 

assets from which to satisfy Decedent’s contractual and 

testamentary intentions for his surviving spouse.” 

Children, as Trustees, denied the Creditor’s Claims. 

Pursuant to Probate Code section 9353, subdivision (a), when a 

Creditor’s Claim is rejected, it is “barred” unless the creditor 

anything different. That is, there is no suggestion that the 

exhibits contained anything documenting that $1,000,000 worth 

of maintenance expenses – or, indeed, any amount of 

maintenance expenses – had been unpaid.

9

Section 7.2.3 is the provision indicating that Wife is 

responsible for the expenses if the ILIT and the Family Trusts 

are all exhausted. 
12

commences an action on the claim within 90 days of the rejection. 

Wife commenced no action on the claims following their rejection. 

Instead, she filed petitions to remove Children as trustees for 

breach of fiduciary duty.10

4. The Disinheritance Petition

On May 16, 2022, Children, as trustees, filed a petition for 

instructions to enforce the no contest clause of Decedent’s Trust 

against Wife, seeking to disinherit her from Decedent’s Trust for 

filing the two Creditor’s Claims without probable cause. 

The petition did not mention the language of the no contest 

clause exempting “[Wife] with respect to the [Marital Trust],” 

and, as such, made no attempt to interpret it. Instead, the 

petition alleged that Decedent’s Trust provided four benefits to 

Wife: (1) the Household Items; (2) the exclusive right to live in 

the house rent free; (3) payment of identified house-related 

expenses from the ILIT; and (4) payment of non-ILIT residence 

expenses and other Marital Trust expenses from the Family 

Trusts. 

The petition went on to allege that Wife filed her two 

Creditor’s Claims “without probable cause in violation of the No 

Contest Clause,” and requested the court “determine that any 

10 At the hearing on the anti-SLAPP motion, and again at the 

hearing on attorney fees, Wife’s counsel argued that Wife had, in 

fact, filed suit on the Creditor’s Claims, and that those suits were 

still pending. When pressed on this by the trial court, Wife 

counsel explained that she was referring to her petition to remove 

the trustees, and a petition to compel them to follow the 

provisions of the ILIT. In her brief on appeal, Wife concedes that, 

after her Creditor’s Claims were rejected, she “took no other 

action related to the creditor’s claims.” 
13

and all of [Wife’s] interest in [Decedent’s Trust] be deemed 

forfeited, and further determine that any and all bequests or 

devises and any trust created under [Decedent’s Trust], provided 

to or established for the benefit of [Wife] is revoked.” 

5. Wife’s Anti-SLAPP Motion

A. Overview of Anti-SLAPP Procedure

An anti-SLAPP motion presents a means by which a 

defendant (Wife), sued for conduct in furtherance of the 

constitutional right of petition or free speech, can place the 

burden on a plaintiff (Children) to establish that there is a 

probability of prevailing on the claim or face early dismissal of 

the action. (Code Civ. Proc., § 425.16, subd. (b)(1).) If the 

defendant (Wife) first establishes a prima facie showing that a 

claim is based on so-called “protected activity” (Creditor’s 

Claims), the burden switches to the plaintiff (Children) to 

establish the lawsuit (no contest/ disinheritance petition) has at 

least minimal merit. (Urick v. Urick (2017) 15 Cal.App.5th 1182, 

1191.)

Before a trial court may proceed to the second prong, the 

moving defendant must satisfy the first prong – that is, establish 

that the cause of action arises from protected activity, as the term 

is defined by statute. Code of Civil Procedure section 425.16, 

subdivision (e) is the operative provision and describes four 

categories of protected speech and conduct, including: “(1) any 

written or oral statement or writing made before a legislative, 

executive, or judicial proceeding, or any other official proceeding 

authorized by law, [and] (2) 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, . . . .” 
14

B. Wife’s Motion

Wife argued that her Creditor’s Claims were protected 

litigation activity under subdivisions (e)(1) and (e)(2) quoted 

above, and Children do not disagree. (See Key v. Tyler (2019) 34 

Cal.App.5th 505, 518 [anti-SLAPP applies to no contest 

petitions]; Urick v. Urick, supra, 15 Cal.App.5th 1182, 1185-1186 

[same].)

She then turned to the second part of the anti-SLAPP 

analysis: whether Children could establish that their no contest/ 

disinheritance petition had minimal merit by showing that Wife’s 

Creditor’s Claims lacked probable cause. Wife argued that they 

could not do so for two reasons. First, she argued that the no 

contest clause exempted her and she therefore could not violate it 

as a matter of law. Second, she argued that the course of failed 

negotiations between her and Children demonstrated that her 

Creditor’s Claims had probable cause as a matter of law. Wife 

supported her probable cause argument with declarations of 

herself and counsel setting forth the contentious history of the 

dealings between the parties after decedent’s death, with exhibits 

documenting the disagreements.11

11 To some extent, the attached exhibits did not support the 

characterization they were given in Wife’s counsel’s declaration. 

For example, Wife’s counsel asserted that Children’s counsel 

“misrepresented the law regarding premarital waivers of an 

ERISA benefit,” – a statement purportedly supported by e-mails 

attached as Exhibit L. The Exhibit L e-mails contain no 

discussion of the law regarding such waivers. 
15

C. Children’s Opposition

Children did not submit any evidence in connection with 

their opposition; they took the position that they could establish 

minimal merit based on the Creditor’s Claims and the terms of 

Decedent’s Trust alone.

As to Wife’s exemption from the no contest clause, Children 

took the position that it meant only that Wife could not be 

disinherited from the life estate in the residence, which was the 

only asset in the Marital Trust. They argued that she could still 

be disinherited from the Household Items gift, and her right to 

have the Family Trusts fund residence-related expenses if the 

ILIT proves inadequate. 

On the issue of whether the Creditor’s Claims were filed 

without probable cause, Children argued they were deficient on 

their face. The claims contained no information or 

documentation to support the amounts claimed ($1,000,000 and 

$2,000,000). They further argued that the $2,000,000 Creditor’s 

Claim was an improper trust contest, which actually sought 

reformation of the terms of Decedent’s Trust, in the form of a 

Creditor’s Claim. 

D. Wife’s Reply

In reply, Wife argued that Children’s failure to support 

their opposition with any evidence was fatal to their opposition, 

as they have the burden of proving their claims had minimal 

merit. 

She also argued that the language exempting “[Wife] with 

respect to the [Marital Trust]” from the no contest clause applied 

not only to the life estate in the residence, but also the right to 

have non-ILIT expenses covered by the Family Trusts – as that 

provision was found in Article VII, governing administration of 
16

the Marital Trust. In other words, the right to have ILIT 

expenses covered by the Family Trusts was part of article of 

Decedent’s Trust setting forth the functioning of the Marital 

Trust; so Wife believed that right was safe from disinheritance, 

since the no contest clause exemption applied to the entirety of 

the Marital Trust. 

E. Hearing

At the August 9, 2022 hearing, argument focused on: (1) 

whether Wife had probable cause to file the Creditor’s Claims; 

and (2) to what extent her exemption from the no contest clause 

barred the disinheritance petition.

As to the first – probable cause to file the Creditor’s Claims 

– the court believed that, preliminarily, the fact that Wife did not 

pursue the Creditor’s Claims following their denial gave rise to 

an inference that the claims were not well presented. In 

addition, the court observed that the amounts sought in the 

Creditor’s Claims were “extraordinary numbers” that “do not 

appear to have any – to bear any relationship to reality.” Wife 

argued that the numbers were prospective; they “had to be 

speculative” because she did not know how much longer she 

would live and how many future benefits she would be denied. 

Turning to the second point, the exemption clause, the trial 

court initially observed that the clause exempted the Marital 

Trust from the no contest clause, so the only thing from which 

Wife could be disinherited was Decedent’s (main) Trust, not the 

Marital sub-trust. “And what that is worth at the end of the day, 

I don’t know.” The parties agreed that the Marital Trust was 
17

exempt from the no contest provision, but disagreed as to the 

scope and intent of that exemption.12

As we shall explain, it was at this point that the case took 

an unusual turn. The focus of the argument should have been on 

whether Children had a probability of prevailing on their petition 

to disinherit Wife from some part of Decedent’s Trust. Instead, it 

turned to whether Children’s petition sought, in part, to 

disinherit Wife from the Marital Trust from which she concededly 

could not be disinherited. The trial court looked at the language 

of the prayer in the disinheritance petition, and concluded it was 

“fairly broad.” Wife argued that since Children sought to 

disinherit her from Decedent’s Trust and any trust created under 

it, this included the Marital Trust and she must therefore prevail 

on her anti-SLAPP motion to the extent the petition sought to 

disinherit her from the Marital Trust. The court agreed. 

Children’s counsel offered a “clarification” that the petition did 

not seek to disinherit Wife from the Marital Trust, and requested 

the court deny the anti-SLAPP motion on that basis. There was 

some discussion as to how such a clarification should proceed –

perhaps by amendment or stipulation. No resolution was 

reached and the court took the motion under submission. 

12 Children’s counsel, who had drafted Decedent’s Trust, 

represented that the Marital Trust exemption from the no contest 

provision was inserted only for tax purposes, to preserve the 

marital deduction, and was not intended to go beyond the Marital 

Trust itself. 
18

F. Ruling

On August 12, 2022, the court issued its ruling denying the 

anti-SLAPP motion. 

The court began by taking judicial notice of the pleadings in 

the Probate matter, which included the Creditor’s Claims 

themselves. Next, the court concluded that Children had a 

probability of prevailing on the issue of whether the Creditor’s 

Claims had been filed without probable cause, given that (1) Wife 

did not pursue them after their denial; and (2) Wife’s own 

exhibits demonstrated she had lost, at most, about one tenth of 

the $3,000,000 she sought in those claims. 

Wife’s remaining argument was that the disinheritance 

petition sought to disinherit her from everything, including the 

Marital Trust, which was exempted. The court agreed that the 

complaint could be construed as seeking to disinherit her from 

the Marital Trust, as well as Decedent’s Trust in general.13 The 

court explained, “That the Marital Trust is not subject to the No 

Contest clause is important to [Wife’s] Motion because if the 

[Disinheritance Petition] in fact seeks to disinherit her from the 

Marital Trust, the [Disinheritance Petition] would not even have 

minimal merit, thus obligating the court to grant the Motion to 

Strike. At the hearing, [Children’s] counsel stipulated on the 

record that they were not seeking to disinherit [Wife] from the 

13 The trial court mistakenly construed the disinheritance 

petition as also seeking to disinherit Wife from the ILIT. Later, 

at the hearing on cross-motions for attorney fees, Children’s 

counsel would represent that the ILIT is a separate trust with its 

own proceedings in Probate Court, and that the disinheritance 

petition in this case did not seek to disinherit Wife from the ILIT. 

The court accepted the correction. 
19

Marital Trust and therefore offered what is essentially an 

amendment to their prayer.” The court recognized authority 

exists prohibiting amendment of a complaint in response to an 

anti-SLAPP motion, but found that caselaw distinguishable. 

With that amendment permitted, the court denied the antiSLAPP motion. 

Following entry of the order denying the anti-SLAPP 

motion, Wife filed a timely notice of appeal. 

6. Cross-Motions for Attorney Fees

The anti-SLAPP statute provides, “a prevailing defendant 

on a special motion to strike shall be entitled to recover that 

defendant’s attorney’s fees and costs. If the court finds that a 

special motion to strike is frivolous or is solely intended to cause 

unnecessary delay, the court shall award costs and reasonable 

attorney’s fees to a plaintiff prevailing on the motion, pursuant to 

[Code of Civil Procedure] Section 128.5.” (Code Civ. Proc., § 

425.16, subd. (c)(1).) Both parties sought their attorney fees 

under this section.

Wife argued that she should be considered the prevailing 

party on the anti-SLAPP motion, as she had achieved her 

litigation objective of withdrawal or dismissal of the claim to 

disinherit her from the Marital Trust.14 She sought $51,440 in 

attorney fees.

14 In her briefing on the attorney fee motions, Wife took the 

position that, since she could not be disinherited from the Marital 

Trust, the sole issue remaining was whether she could be 

disinherited from the Household Items gift. The Children 

responded that the scope of the Marital Trust exemption was still 

at issue, as they had not amended away their prayer to disinherit 

her from the right to collect non-ILIT residence expenses from the 
20

Children argued that not only were they the prevailing 

party, but they were entitled to their fees because Wife’s antiSLAPP motion was frivolous and utterly devoid of merit. They 

agreed that the No Contest clause exempted the Marital Trust, 

but argued the disinheritance petition was still proceeding as to 

the remainder of Decedent’s Trust. They sought $41,250 in fees.

At the hearing on the attorney fee motions, the trial court 

stated that the result of the anti-SLAPP motion was a denial, and 

that if Wife achieved anything “it was the elimination of the 

prospect, which there really was no prospect, that she was going 

to be disinherited from the marital trust.” The court suggested 

that this was of no practical benefit, as Children easily conceded 

they were not seeking to disinherit her from the Marital Trust, 

despite the broad language in their disinheritance petition. Wife 

argued that she had obtained a huge victory, because all of her 

rights flow through the Marital Trust, and she valued that trust, 

and her anti-SLAPP victory, in excess of $25 million.15 The court 

disagreed, taking the position that the only thing Children did 

was “essentially tighten up the prayer in terms of what they were 

trying to accomplish,” and that Children never truly sought to 

disinherit her from the life estate in the house. 

Family Trusts. In any event, on appeal, Wife now argues that 

she cannot be disinherited from the Household Items gift either.

15 When asked what assets are in the Marital Trust that 

amount to $25 million, Wife identified the house at $16.5 million 

and the $8.4 million in the ILIT which “is to be held exclusively 

to fund whatever the marital trustees deem an expense to her 

cost-free occupancy” of the house. 
21

Turning to Children’s motion, the court believed that 

several of the positions taken by Wife in her anti-SLAPP motion 

were frivolous – particularly that she had probable cause for the 

huge amounts sought in her Creditor’s Claims. 

After taking the motions under submission, the court 

denied Wife’s motion on the basis that she did not prevail on the 

anti-SLAPP motion. The court took issue with Wife’s claim that 

the Marital Trust contained $25 million, in that she was 

conflating the Marital Trust with the ILIT. “In fact, what [Wife] 

wants is everything in the ILIT, notwithstanding that she is only 

entitled to ‘sums due on account of real property taxes, 

maintenance and insurance directly related to the [Property].’ 

[Citations.] This effort to conflate the Marital sub-trust with the 

ILIT allows [Wife] to cleverly bootstrap her claim that she 

achieved practical success by her anti-SLA[P]P motion because 

she salvaged her right to receive the $8.4 million in the ILIT. 

[Citations.] [¶] Nothing could be further from the truth. 

[Children] have no obligation to deliver $6 million [or] any other 

undifferentiated sum to [Wife] and/or her attorney. They have a 

continuing obligation under the ILIT to pay the reasonable costs 

of maintaining the Property on a periodic basis, nothing more, 

nothing less.” 

Turning to Children’s attorney fee motion, the court 

recognized that the test for whether a motion is frivolous is an 

objective one, and asks if a reasonable attorney would agree that 

it was totally devoid of merit. The court concluded that there 

were several aspects of Wife’s motion that meet this standard, 

specifically: (1) Wife’s argument that her $3,000,000 in 

unsubstantiated Creditor’s Claims did not trigger the no contest 

clause; (2) Wife’s argument that the no contest clause did not 
22

apply to her at all; and (3) Wife’s argument that Children had to 

present their own evidence of minimal merit, and could not rely 

on Wife’s exhibits (including the Creditor’s Claims themselves). 

As to Wife’s argument that her motion was not frivolous as it 

achieved the removal of the Marital Trust from the 

disinheritance petition, the court concluded that this could have 

been achieved with a quick phone call or letter, as Children never 

challenged this point and it was not at issue. The court 

concluded it was appropriate to award sanctions for those parts of 

the anti-SLAPP motion that were frivolous, and awarded 

attorney fees in the amount of $35,850 from Wife. 

Wife filed a timely notice of appeal of the attorney fee 

orders. We consolidated the appeals for briefing, argument, and 

decision.

DISCUSSION

1. Standard of Review

In this case, the first prong of the anti-SLAPP analysis – a 

cause of action based on protected petitioning activity – is 

conceded, so we turn to the second prong: whether Children 

made a sufficient showing of probable success on their claims. 

“We consider that issue de novo. [Citation.] To survive antiSLAPP scrutiny, a plaintiff need only establish their cause of 

action has ‘minimal merit.’ [Citation.] Applying a ‘summaryjudgment-like’ test [citation], we accept as true the admissible 

evidence favorable to [plaintiff], and evaluate [defendant’s] 

evidence only to determine whether it defeats [plaintiff’s] 

showing as a matter of law. [Citations.] In other words, we 

determine ‘whether a prima facie showing has been made that 

would warrant the claim going forward.’ [Citations.]” (Cuevas-
23

Martinez v. Sun Salt Sand, Inc. (2019) 35 Cal.App.5th 1109, 

1117.)

2. Anti-SLAPP Applies to Claims Only

At the hearing on the anti-SLAPP motion in this case, the 

court’s attention was directed to the disinheritance petition’s 

prayer for relief, and whether that prayer sought an improper or 

overbroad remedy – that is, to disinherit Wife from the Marital 

Trust. But an anti-SLAPP motion cannot be directed toward a 

pleaded remedy.

The anti-SLAPP statute itself states that, “[a] cause of 

action” against a person arising from protected speech or 

petitioning activity shall be subject to a motion to strike. (Code 

Civ. Proc., § 425.16, subd. (b)(1).) But, as our Supreme Court 

recognized, “cause of action,” may refer to distinct claims for 

relief in a complaint (e.g., first cause of action, second cause of 

action) or it may refer generally to a legal claim possessed by an 

injured person even when no pleading has been filed. (Baral v. 

Schnitt (2016) 1 Cal.5th 376, 381-382.) In Baral, the court was 

concerned with so-called “mixed” causes of action, where a 

plaintiff pleaded a cause of action based on both protected and 

unprotected activity. The court concluded that, in such a case, 

the anti-SLAPP motion should not be directed to the cause of 

action in its entirety, but only that portion of the cause of action 

that constitutes a “claim for relief founded on allegations of 

protected activity.” (Id. at p. 382.)

Our Supreme Court explained, “The scope of the term 

‘cause of action’ in section 425.16(b)(1) is evident from its 

statutory context. When the Legislature declared that a ‘cause of 

action’ arising from activity furthering the rights of petition or 
24

free speech may be stricken unless the plaintiff establishes a 

probability of prevailing, it had in mind allegations of protected 

activity that are asserted as grounds for relief. The targeted claim 

must amount to a ‘cause of action’ in the sense that it is alleged to 

justify a remedy. By referring to a ‘cause of action against a 

person arising from any act of that person in furtherance of’ the 

protected rights of petition and speech, the Legislature indicated 

that particular alleged acts giving rise to a claim for relief may be 

the object of an anti-SLAPP motion. (§ 425.16(b)(1), italics 

added.)” (Baral v. Schnitt, supra, 1 Cal.5th at p. 395.)

The California Supreme Court further refined the 

appropriate target for an anti-SLAPP motion in Bonni v. St. 

Joseph Health System (2021) 11 Cal.5th 995 (Bonni). In that 

case, a doctor sued a hospital alleging unlawful retaliation. The 

doctor alleged 19 distinct retaliatory acts (or courses of conduct). 

The high court held that the proper anti-SLAPP analysis 

involved looking at each alleged retaliatory act to determine 

whether it constituted protected activity and, if so, whether the 

plaintiff could demonstrate that each such act was taken for 

retaliatory purposes (i.e., show minimal merit to the claim based 

on that act). (Id. at pp. 1009-1010, 1012.)

In her opening brief on appeal, Wife argues that, under 

Bonni, Children “must satisfy the second step of the SLAPP 

analysis as to each and all trusts against which they seek to 

enforce a no contest clause.” But this is not what Bonni holds. 

Bonni requires the plaintiff to establish a probability of 

prevailing as to each claim based on protected activity, not as to 
25

each remedy sought for that claim.16 Indeed, other cases have 

held that a remedy is not an appropriate target for an antiSLAPP motion. (E.g., Golden Gate Land Holdings LLC v. Direct 

Action Everywhere (2022) 81 Cal.App.5th 82, 91 [claim for 

injunctive relief is not a cause of action but a request for a 

remedy which is not subject to an anti-SLAPP motion]; Coretronic 

Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th 1381, 1392 [antiSLAPP motions are directed to causes of action, not remedies]; 

Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 162 

[same].)

Here, Children allege a single cause of action to disinherit 

Wife from Decedent’s Trust due to her pursuit, without probable 

cause, of two Creditor’s Claims. We therefore must determine 

only whether Children have demonstrated minimal merit to their 

cause of action to disinherit Wife based on her pursuit of those 

claims. Children were required to demonstrate a probability of 

prevailing on their claim to disinherit Wife from some benefit to 

which she was otherwise entitled under Decedent’s Trust; if they 

successfully did that, the anti-SLAPP motion was properly denied 

regardless of any additional, potentially overbroad, relief sought 

in their petition.17 (See Oasis West Realty, LLC v. Goldman

16 Under Bonni, it would be appropriate to consider each act 

of protected petitioning activity – that is, each Creditor’s Claim –

separately, to determine whether the cause of action arising from 

it has minimal merit. Wife did not move on that basis, and the 

parties consistently treat the pursuit of the two simultaneouslyfiled Creditor’s Claims as a unified whole.

17 For this reason, we need not address Wife’s argument that 

the trial court improperly permitted Children to amend their 

disinheritance petition at the hearing on the anti-SLAPP motion. 
26

(2011) 51 Cal.4th 811, 818, 822, 826 [plaintiffs alleged damages 

in excess of $4 million; establishing a probability of prevailing on 

$3,000 of damages was sufficient to establish damages and 

satisfy their second prong burden], limited on other grounds by

Baral v. Schnitt, supra, 1 Cal.5th at pp. 391-392.) 

3. Children Have Demonstrated a Probability of 

Prevailing

With the inquiry properly focused, we consider whether 

Children have demonstrated the minimal merit necessary to 

defeat Wife’s anti-SLAPP motion. 

Children seek to disinherit Wife under the no contest 

clause of the Decedent’s Trust. The language of that clause 

provides it is triggered by the filing of a creditor’s claim without 

probable cause. It further defines probable cause as existing if 

“at the time of filing a Contest, the facts known to the Contesting 

Beneficiary would cause a reasonable person to believe that there 

is a reasonable likelihood that the requested relief will be granted 

after an opportunity for further investigation or discovery.” 

Evidence of a lack of probable cause exists on the face of the 

Creditor’s Claims themselves.18 The governing statutory scheme 

provides that a creditor’s claim shall be supported by an affidavit. 

If the claim is due, the affidavit shall set forth the facts 

Any such amendment related only to remedy and was therefore

irrelevant to the resolution of the anti-SLAPP motion.

18 In Wife’s opening brief on appeal, she declines to address 

this issue, arguing that since she is exempt from the operation of 

the no contest clause, it is irrelevant. After Children addressed 

the issue in their respondents’ brief in an abundance of caution, 

Wife argued it in her reply. 
27

supporting the claim and the amount of the claim; if the claim is 

not due or the amount not yet ascertainable, the affidavit shall 

set forth only the facts supporting the claim. (Prob. Code, § 9151, 

subds. (a)(2) & (a)(3).) Here, Wife’s first Creditor’s Claim sought 

$1,000,000, but the facts she set forth did not support a claim in 

that amount, and her own documents submitted in connection 

with the anti-SLAPP motion demonstrated her claimed losses did 

not reach that amount. Her second Creditor’s Claim sought 

$2,000,000, but the facts she set forth did not support a cash 

claim at all, but instead sought reformation of Decedent’s Trust. 

At the hearing on the anti-SLAPP motion, Wife conceded that the 

amounts she claimed were “speculative,” and argued that they 

had to be, because her Creditor’s Claims were prospective. But 

the statute does not require a creditor’s claim to set forth an 

amount when “the claim is not due or contingent, or the amount 

is not yet ascertainable.” (Prob. Code, § 9151, subd. (a)(3).) In 

short, Wife was not required to state amounts in her Creditor’s 

Claims, but instead chose to submit claims for large, speculative 

sums. Moreover, once her Creditor’s Claims were denied, Wife 

did not commence action on them, which gives rise to an 

inference that she knew her claims were unlikely to succeed. 

Taken together, this is sufficient evidence to establish a prima 

facie case that the Creditor’s Claims were submitted without 

probable cause.19

We next turn to remedy, that is, is there something from 

which Wife could be disinherited? The no contest clause provides 

19 It may be that, at trial on Children’s disinheritance 

petition, the court will conclude the claims were supported by 

probable cause. But that is not the issue on anti-SLAPP.
28

that when a contesting beneficiary pursues a Creditor’s Claim 

without probable cause, “then any share or interest in the trust 

estate, any bequest or devise and any trust created under this 

Trust, provided to or established for the benefit of the Contesting 

Beneficiary, is revoked.” As Wife is to receive multiple benefits 

under Decedent’s Trust – at the very least, including the 

Household Items and the Marital Trust – the existence of a 

remedy is established.

Wife argues, however, that the exemption clause defeats 

the disinheritance action entirely. The clause provides: “[T]his 

Article shall not be applicable to [Wife] with respect to the 

[Marital Trust].” On appeal, Wife asks us to interpret this clause 

de novo. Children argue similarly. But we are here only on an 

appeal from an anti-SLAPP motion, and resolving an issue as 

critical as the scope of this exemption is unnecessary at this early 

stage of the litigation.

Throughout this case – both before the trial court and this 

court – a variety of possible interpretations have been sought by 

the parties. At the most extreme, Wife argues in her appellate 

briefing that the exemption renders the no contest clause 

inapplicable to Wife entirely, interpreting it as meaning the no 

contest clause does “not apply to [Wife] and the Marital Trust.” 

At the other end, Children argue that the exemption simply 

means Wife cannot be disinherited from the life estate in the 

residence provided by the Marital Trust, but can lose all other 

benefits related to the Marital Trust, as well as other provisions 

of Decedent’s Trust. In between lies the possibility that Wife 

cannot lose any of the benefits discussed in Article VII – the 

administration of the Marital Trust, but can be disinherited from 
29

the Household Items gift, which is outside the Marital Trust 

provisions entirely. 

There are two reasons it is premature for us to interpret 

the exemption clause at this stage. First, although the parties 

did not offer extrinsic evidence as to its interpretation on the 

anti-SLAPP motion, it is apparent that such evidence exists. 

Children’s counsel, who drafted Decedent’s Trust, represented at 

the hearing that the exemption clause was intended only to 

preserve the marital deduction, suggesting it should be 

interpreted with that goal. Also, the ILIT contains a no contest 

provision that explicitly mentions Wife, which possibly 

undermines Wife’s argument that the no contest exemption in 

Decedent’s Trust was intended to protect Wife’s interests 

entirely.20 Second, and more important, it is unnecessary to 

interpret the exemption clause. As long as Children’s position 

has minimal merit, the anti-SLAPP motion was properly denied.

Here, the language of the exemption clause is easily 

amenable to the interpretation that it applies only to the Marital 

Trust. Indeed, although the precise limits of what is and is not 

included in the Marital Trust for these purposes are subject to 

dispute, the plain language of the clause exempts “[Wife] with 

respect to the [Marital Trust].” This interpretation, which is 

clearly reasonable, results in the Household Items gift being 

outside the scope of the exemption. As such, the Disinheritance 

20 With no citation to the record, Wife states that the 

exemption was intended “to ensure that [Wife’s] rights and 

entitlement to cost-free residence in the [house] could not be 

challenged by [Decedent’s] . . . children from a prior marriage . . . 

.” The fact that Wife could be disinherited from the ILIT 

suggests that this is not the case.
30

Petition has minimal merit, as it seeks to disinherit Wife from 

that gift, among others.21 That is all that is necessary to defeat 

Wife’s anti-SLAPP motion, and the trial court did not err in 

denying it. 

4. Attorney Fees

Wife contends the court erred in denying her attorney fees 

as a partially-prevailing party on the anti-SLAPP motion, and 

also in granting fees to Children for her pursuit of a frivolous 

motion.

A. Wife Did Not Prevail

“[A] party who partially prevails on an anti-SLAPP motion 

must generally be considered a prevailing party unless the 

results of the motion were so insignificant that the party did not 

achieve any practical benefit from bringing the motion. The 

determination whether a party prevailed on an anti-SLAPP 

motion lies within the broad discretion of a trial court. [Citation.] 

We review this determination on an abuse of discretion 

standard.” (Mann v. Quality Old Time Service, Inc. (2006) 139 

Cal.App.4th 328, 340.)

21 Wife argues against this result on the basis that her 

Creditor’s Claims did not relate to the Household Items gift, but 

only the Marital Trust. In other words, she interprets the 

exemption as exempting the Marital Trust from prohibited 

contests, not the resulting disinheritance. This, too, will have to 

be resolved as litigation on the disinheritance petition proceeds. 

But even if this interpretation prevails, Children’s disinheritance 

petition is not necessarily barred, because Wife’s second 

Creditor’s Claim, which sought reformation of Decedent’s Trust 

to the extent it was subject to early termination, can be seen as 

challenging more than just the Marital Trust.
31

The trial court did not abuse its discretion in determining 

Wife was not the prevailing party. Wife argued that she achieved 

her litigation objectives due to the fact that Children, in some 

way, clarified that they were not seeking to disinherit her from 

the Marital Trust. Setting to one side the fact that Children and 

Wife vociferously disagree as to what it means to disinherit Wife 

from the Marital Trust, Wife is not the prevailing party because 

the scope of the remedy Children sought is simply immaterial to 

the resolution of the anti-SLAPP motion. Any clarification to the 

prayer in Children’s disinheritance petition arose from a 

misunderstanding of the showing necessary to defeat an antiSLAPP motion, and was not a partial victory on the motion at all.

B. The Court Erred in Awarding Fees to Children

The anti-SLAPP statute provides that “[i]f the court finds 

that a special motion to strike is frivolous . . . , the court shall 

award costs and reasonable attorney’s fees to a plaintiff 

prevailing on the motion, pursuant to [Code of Civil Procedure] 

Section 128.5.” (Code of Civ. Proc., § 425.16, subd. (c)(1).) The 

“shall” is mandatory; if the court finds the anti-SLAPP motion 

was frivolous, an award of fees is required. (Moore v. Shaw

(2004) 116 Cal.App.4th 182, 198-199.) “A determination of 

frivolousness requires a finding the anti-SLAPP ‘motion is 

“totally and completely without merit” [citation], that is, “any 

reasonable attorney would agree such motion is totally devoid of 

merit.” [Citation.]’ [Citation, italics added.] We review the trial 

court’s order for an abuse of discretion. [Citation.]” (Id. at p. 

199.) An award of partial attorney fees for pursuit of a frivolous 

anti-SLAPP motion is appropriate when the anti-SLAPP motion 

was frivolous in part. (Nirschi v. Schiller (2023) 91 Cal.App.5th 

386, 407-409 [partial award of fees appropriate when defendant 
32

directed anti-SLAPP motion to multiple causes of action, several 

of which clearly did not arise from protected activity].)

Here, the trial court concluded that there were “several 

aspects” of Wife’s anti-SLAPP motion “that any reasonable 

attorney would agree were devoid of merit.” Specifically, the 

court believed Wife took the following frivolous “positions in 

support of her motion:” that her $3 million in Creditor’s Claims 

were necessarily supported by probable cause; that the Trust’s no 

contest provision does not apply to Wife at all; and that Children 

could not rely on Wife’s evidence (the Creditor’s Claims 

themselves) to establish their disinheritance petition had 

minimal merit. 

We cannot conclude sanctions were appropriate here. 

First, while we agree that sanctions can be awarded when an 

anti-SLAPP motion is frivolous in part, we question whether it 

would impermissibly chill zealous advocacy if sanctions can be 

imposed for taking a frivolous “position in support” of a motion 

otherwise based on non-frivolous (although non-meritorious) 

arguments.

Moreover, it is apparent that, at the very least, Children 

were overreaching in their disinheritance petition, seeking to

disinherit Wife from the entirety of decedent’s trust when, as 

they now concede, she cannot be disinherited from her life estate 

in the house. While some of Wife’s arguments indisputably 

lacked merit, her anti-SLAPP motion, as a whole, was directed to 

the single cause of action in a disinheritance petition that, on its 

face, improperly sought to take away her right to live in her 

home. To be sure, we have held the motion to have been 

procedurally improper to the extent it was directed toward only a 

portion of the remedy sought. But we cannot say any reasonable 
33

attorney would have known not to bring the motion, especially 

when Children did not argue the motion was improper on this 

basis, nor did the trial court deny it on that ground. Under the 

circumstances, the award of fees constituted an abuse of 

discretion.

DISPOSITION

The orders denying the anti-SLAPP motion; and denying 

Wife prevailing party attorney fees are affirmed. The order

awarding Children attorney fees for Wife’s pursuit of a frivolous 

anti-SLAPP motion is reversed. The parties are to bear their own

costs on appeal.

LEE, J.

WE CONCUR:

MOOR, Acting P. J. KIM, J.

 Judge of the San Bernardino County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.