Greco v. Greco
206 Cal. Rptr. 3d 501
Cal. Ct. App.2016Background
- Clyde C. Greco Jr., as trustee and estate administrator for his parents, used trust/estate funds to prosecute multiple lawsuits against family members (Bentley Partnership, Citibank, San Diego actions).
- Cara Lyn Greco sued Clyde Jr. in civil court (elder-abuse claims) and in probate court (breach of fiduciary duty, constructive fraud, conversion) seeking restitution, penalties, and punitive damages for funds allegedly misappropriated to fund litigation.
- Clyde Jr. filed anti‑SLAPP special motions to strike both actions under Code of Civil Procedure § 425.16, arguing the claims arise from protected petitioning (funding litigation) and are barred by the litigation privilege (Civ. Code § 47(b)).
- Trial and probate courts denied the anti‑SLAPP motions, concluding the gravamen of most claims was the taking/disbursement of trust/estate funds (non‑protected conduct), not the litigation itself.
- On appeal, the court affirmed denial as to the elder‑abuse, breach of fiduciary duty, and conversion claims, but reversed as to the probate constructive‑fraud claim and remanded for the probate court to decide whether plaintiff can demonstrate a probability of prevailing on that claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether claims "arise from" protected petitioning activity under § 425.16 | Cara Lyn: gravamen is wrongful taking/disbursement of trust/estate funds (non‑protected conduct) | Clyde Jr.: taking was to fund litigation; funding litigation is protected petitioning | Court: Most claims arise from the taking (non‑protected); anti‑SLAPP properly denied for elder‑abuse, breach, conversion |
| Whether funding litigation as motive converts a taking into protected activity | Cara Lyn: motive irrelevant; injury is the taking, not litigation | Clyde Jr.: disbursement only actionable because used to fund litigation (protected) | Court: Motive irrelevant but wrongful act must itself be protected; here taking is not within § 425.16(e) public‑interest categories |
| Whether the constructive fraud claim arises from protected statements in connection with litigation | Cara Lyn: claim alleges misrepresentations about litigation to beneficiaries (injury from statements) | Clyde Jr.: statements about litigation are protected petitioning | Court: Constructive fraud claim does arise from protected petitioning (statements about litigation) — first prong met |
| Whether litigation privilege bars the constructive fraud claim on the merits | Cara Lyn: privilege may not apply because statements may have been to nonparticipants or not made to achieve litigation objectives | Clyde Jr.: privilege provides absolute immunity for communications related to litigation | Held: Court rejects that privilege conclusively bars the claim on appeal; remands for probate court to evaluate evidentiary showing of probability of prevailing (privilege unresolved on facts) |
Key Cases Cited
- Navellier v. Sletten, 29 Cal.4th 82 (anti‑SLAPP two‑step framework and broad construction of § 425.16)
- Old Republic Constr. Program Group v. The Boccardo Law Firm, Inc., 230 Cal.App.4th 859 (distinguishing wrongful communicative acts from wrongful noncommunicative takings for § 425.16 "arising from" analysis)
- Rusheen v. Cohen, 37 Cal.4th 1048 (funding litigation is communicative conduct for anti‑SLAPP purposes)
- Tuszynska v. Cunningham, 199 Cal.App.4th 257 (attorney selection/litigation funding decisions deemed protected; motive irrelevant but wrongful act must be protected)
- Silberg v. Anderson, 50 Cal.3d 205 (scope of the litigation privilege under Civ. Code § 47(b))
- Flatley v. Mauro, 39 Cal.4th 299 (litigation privilege is a substantive defense courts consider in anti‑SLAPP merits step)
- PrediWave Corp. v. Simpson Thacher & Bartlett LLP, 179 Cal.App.4th 1204 (§ 425.16(e)(4) requires conduct in furtherance of petitioning to relate to a public issue or public interest)