Starr v. Ashbrook - Case Brief

Case Number: G060597
Court: California Court of Appeal, Fourth Appellate District, Division Three
Date Filed: 2025‑09‑02

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Holding

The court held that the surcharge cause of action alleged by Jonathan Starr arose from Ashbrook’s alleged waste and misuse of trust assets—not from protected petitioning or speech activity—so the claim did not arise out of activity covered by California’s anti‑SLAPP statute and the motion to strike was properly denied.

Narrative

Lead.
In a rare intersection of probate and anti‑SLAPP law, the Fourth Appellate District ruled that a beneficiary’s claim for a surcharge against a trustee for alleged waste of trust assets does not qualify as “protected activity” under Cal. Civ. Proc. § 425.16. The decision underscores that the anti‑SLAPP shield is limited to the act of petitioning or speaking itself, not to the underlying fiduciary misconduct that may be exposed by that petition.

Procedural backdrop.
Jonathan Starr, a contingent beneficiary of his father Arnold Starr’s revocable inter‑ vivos trust, filed a probate petition in Orange County Superior Court in September 2020 seeking to suspend, remove, and surcharge trustee‑in‑fact Thomas Ashbrook for alleged breach of fiduciary duty. The petition’s fourth cause of action—surcharge—sought repayment of trust monies allegedly wasted on a meritless “Petition for Instructions” and on an elder‑abuse lawsuit that Ashbrook had funded using trust assets. Ashbrook responded with a special motion to strike the surcharge claim under the anti‑SLAPP statute, arguing that the underlying conduct—pursuing litigation and using trust funds to do so—was protected petitioning activity. The trial court denied the motion, finding the surcharge claim rooted in waste of trust assets, not protected activity, and affirmed that finding on appeal. Ashbrook appealed.

Key facts.
Arnold Starr, a 90‑year‑old former neurology professor, created the Arnold Starr Revocable Trust in 1996, funding it with a Laguna Beach residence, a Julian farm, and a brokerage account. Beginning in 2010 his mental capacity declined. In 2017–18, amid concerns about undue influence by a caregiver, Sandie Steele, Arnold amended the trust to make his sons—Jonathan, David, and Noah—successor trustees and appointed a trust protector, Daniel Rosen. By November 2018, after a capacity evaluation found Arnold incompetent, the trust was dramatically altered: the sons were removed, a new successor trustee (Klein) was named, and Thomas Ashbrook—Arnold’s neighbor—was named trust protector. Ashbrook subsequently appointed his wife as successor protector, then resigned as protector and installed himself as acting trustee, despite the trust’s explicit language that a protector “shall not be deemed a trustee or fiduciary.”

From that point, Ashbrook filed a Petition for Instructions seeking court approval of a handwritten note that would divert $200,000 to Steele and $2 million to UC Irvine. He also funded an elder‑abuse lawsuit filed in Arnold’s name against his sons, a suit that Arnold never knew existed. The trust’s assets—including the Julian farm—were used to pay the litigation, and Ashbrook testified that the suit was not in Arnold’s best interest. Jonathan’s surcharge claim alleged that Ashbrook’s actions constituted waste and misuse of trust assets, violating Probate Code §§ 16002, 16004, 16006, and 16040.

Issues.

Standing: Does a contingent beneficiary of a revocable trust have standing to sue a trustee when the settlor is still alive but allegedly incompetent?
Anti‑SLAPP first‑step analysis: Does the surcharge cause of action arise out of protected activity under § 425.16(b)(1)?
(Implicit) Second‑step analysis: Assuming the first step were satisfied, would the plaintiff have shown a probability of prevailing? (The court did not reach this step.)

Court’s analysis.

Standing.
The appellate court affirmed the trial court’s determination that Jonathan possessed standing. Although a revocable trust is generally administered for the settlor’s benefit, California law permits a beneficiary to bring a petition when the settlor is incompetent, rendering the trust effectively irrevocable. The court relied on the pre‑2022 version of Probate Code § 15800 (now codified in § 17200) and on case law such as Drake v. Pinkham (2013) 217 Cal.App.4th 400 and Barefoot v. Jennings (2020) 8 Cal.5th 822, which hold that allegations of settlor incompetence confer standing on a beneficiary to challenge fiduciary conduct. The court noted that Jonathan’s verified petition alleged Arnold’s incompetence, that a guardian ad litem had been appointed, and that conservatorship letters were on file—facts sufficient to confer standing pending a later evidentiary showing of incompetence.

Anti‑SLAPP first step.
The court applied the two‑step framework articulated in Baral v. Schnitt (2016) 1 Cal.5th 376 and Park v. Board of Trustees (2017) 2 Cal.5th 1057. The first step requires the defendant to demonstrate that the plaintiff’s claim “arises out of” protected activity. The court emphasized that “the activity that gives rise to liability must itself be the protected conduct” (Park, 1060). It examined the elements of a surcharge claim—fiduciary relationship, breach, and damages—and identified the “core injury‑producing conduct” as the alleged waste and misuse of trust assets, not the filing or funding of litigation.

While Ashbrook argued that the underlying conduct was the pursuit of a petition and the funding of a lawsuit—both classic examples of protected activity under § 425.16(e)(1)–(2) and the litigation privilege of Civ. Code § 47(b)—the court found that those actions were merely the means by which the alleged waste occurred. The plaintiff’s complaint did not allege that the petition or the lawsuit themselves caused the injury; rather, it alleged that Ashbrook, as an unauthorized trustee, diverted trust assets for personal or extraneous purposes. The court cited Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, noting that the “core injury‑producing conduct” must be protected, not merely incidental.

The court further relied on appellate precedent where surcharge or breach‑of‑trust claims were held outside the scope of anti‑SLAPP protection, including Gaynor v. Bulen (2018) 19 Cal.App.5th 864 and Greco v. Greco (2016) 2 Cal.App.5th 810. Those cases similarly concluded that fiduciary misconduct, even when intertwined with litigation, is not “petitioning activity” for anti‑SLAPP purposes.

Because the surcharge claim was rooted in alleged fiduciary waste, the court concluded that the first‑step burden was not met. Accordingly, the anti‑SLAPP motion was denied, and the appellate court affirmed without addressing the second step.

Impact and unresolved questions.
Starr v. Ashbrook clarifies the boundary between protected petitioning activity and the underlying fiduciary misconduct that may be exposed by such petitions. Probate practitioners should note that a beneficiary cannot rely on anti‑SLAPP defenses to shield a trustee from surcharge claims, even when the trustee’s alleged misconduct is intertwined with litigation. The decision reinforces the principle that anti‑SLAPP statutes are not a blanket shield for any conduct that occurs in the context of a lawsuit; the protected conduct must be the direct object of the plaintiff’s claim.

The ruling leaves open the substantive question of whether Ashbrook’s alleged waste will ultimately be proven. The appellate court’s analysis was confined to the procedural anti‑SLAPP issue, and the trial court’s later determination on the merits of the surcharge claim remains pending. Additionally, the decision invites further scrutiny of standing doctrine in revocable‑trust contexts, especially as the 2021 amendment to Probate Code § 15800 (effective 2022) clarifies the rights of beneficiaries when the settlor is incompetent—a statutory change that may affect future cases.

Bottom line for practitioners.
When confronting anti‑SLAPP motions in probate disputes, counsel must carefully dissect whether the plaintiff’s cause of action is predicated on the protected act itself or on the alleged fiduciary breach that the act merely reveals. Starr demonstrates that California courts will look beyond the veneer of litigation to the substantive injury alleged, and will deny anti‑SLAPP relief when the core claim is rooted in alleged waste, breach, or mismanagement of trust assets.

Referenced Statutes and Doctrines

Cal. Civ. Proc. § 425.16 – Anti‑SLAPP statute; §§ 425.16(b)(1), (e) (protected activity categories).
Cal. Civ. Code § 47(b) – Litigation privilege.
Probate Code §§ 15800 (pre‑2022), 17200 (post‑2022) – Rights of beneficiaries and duties of trustees in revocable trusts.
Probate Code §§ 16002, 16004, 16006, 16040 – Fiduciary duties of trustees (interest of beneficiaries, conflict‑of‑interest, preservation of trust property, standard of care).
Probate Code § 1801(b) – Conservatorship of estate.

Key Cases Cited

Baral v. Schnitt (2016) 1 Cal.5th 376 – Anti‑SLAPP two‑step analysis.
Park v. Board of Trustees of Cal. State Univ. (2017) 2 Cal.5th 1057 – “Arises out of” requirement.
Newport Harbor Ventures v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28 – De novo review of anti‑SLAPP orders.
Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610 – Protected activity categories.
Rusheen v. Cohen (2006) 37 Cal.4th 1048 – Filing and funding civil actions as protected activity.
Oates v. City of Lincoln (2001) 93 Cal.App.4th 25 – Elements of surcharge claim.
LaMonte v. Sanwa Bank (1996) 45 Cal.App.4th 509 – Fiduciary breach elements.
Donahue v. Donahue (2010) 182 Cal.App.4th 259 – Reasonableness of legal expenses.
Gaynor v. Bulen (2018) 19 Cal.App.5th 864 – Surcharge claim outside anti‑SLAPP scope.
Greco v. Greco (2016) 2 Cal.App.5th 810 – Similar fiduciary‑misuse claim.
Drake v. Pinkham (2013) 217 Cal.App.4th 400 – Standing of beneficiary when settlor incompetent.
Barefoot v. Jennings (2020) 8 Cal.5th 822 – Supreme Court clarification on standing in trust disputes.
Estate of Giraldin (2012) 55 Cal.4th 1058 – Revocable trust becomes irrevocable upon settlor’s death.
Babbitt v. Superior Court (2016) 246 Cal.App.4th 1135 – Standing of contingent beneficiaries.
Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581 – Core injury‑producing conduct analysis.