Key v. Tyler

Filed 4/19/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

SARAH PLOTT KEY, B283979

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BP131447)
v.

ELIZABETH PLOTT TYLER et al.,

Defendants and Respondents.

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.
_________________________________
 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.

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.)

2
 Tyler responded with an anti-SLAPP motion. Tyler argued
that Key’s No Contest Petition arose from Tyler’s protected
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

2Subsequent undesignated statutory references are to the
Probate Code.

3
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
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

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

4
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.)
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

when relevant under the doctrines of res judicata or collateral
estoppel.
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.

5
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 vice-
president of operations for the nursing home business and was a
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

6
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
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.”

7
 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
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

8
contest law, which says that it shouldn’t be subject to the anti-
SLAPP 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
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

5By 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.

9
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
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

10
“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
(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

11
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
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,

12
§ 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
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

13
“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
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

14
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
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.)

15
 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
that arises from protected petitioning conduct under step one of
the anti-SLAPP procedure.
While Key presents reasonable arguments for why the anti-
SLAPP 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.)

16
 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
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 anti-
SLAPP 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

17
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
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

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.”
7Our discussion of affidavits applies equally to
declarations, which are the statutory equivalent of affidavits.
(Code Civ. Proc., § 2015.5.)

18
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,
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

8 Code of Civil Procedure section 2009 permits the use of
affidavits for a number of purposes, including “upon a motion.”

19
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
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 anti-
SLAPP 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

20
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
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

21
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
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

22
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
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 anti-
SLAPP 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

23
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.
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.

24
 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).)
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”].)

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 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
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

26
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
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

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.)
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

27
 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.
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

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
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.
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.

29
 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,
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

30
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.)
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

31
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.
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.)

32
 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.
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

33
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
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

34
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
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

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

35
 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.
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.

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
 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.
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,

37
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
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

38
 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.”

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
 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
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

40
could not have been altered by the presentation of additional
evidence”].)14
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);

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
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
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

42
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
277, 286, quoting People v. Santamaria (1994) 8 Cal.4th 903, 912
(Santamaria).)15 Other cases have used the term to distinguish

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

43
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
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

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
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
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

45
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.”

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.”

46
 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
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.”

47
 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.

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”].)

48
 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
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.

49
 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. Zubiate-
Beauchamp (2003) 114 Cal.App.4th 624, 633.) In its final
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.

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
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

17Because 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
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
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

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
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.”
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

53
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

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

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
entitled to her costs on this appeal.
CERTIFIED FOR PUBLICATION.

LUI, P. J.
We concur:

ASHMANN-GERST, J.

HOFFSTADT, J.

55