California Court of Appeals, Fourth District, First Division
EDWARD C. BRIDGEMAN, Plaintiff and Appellant,
DONNA J. ALLEN, Defendant and Respondent, BEVERLY J. BRITO, as Trustee, etc., Objector and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2009-00150168- PR-TR-NC Richard G. Cline, Judge.
The McMillan Law Firm, Scott A. McMillan and Evan A. Kalooky for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Hagar & Cotton and Cary L. Cotten for Objector and Respondent.
A trustee must provide notice when all or part of a revocable trust becomes irrevocable because of the death of a settlor (Prob. Code, § 16061.7, subd. (a)) and any action contesting the trust cannot be filed "more than 120 days from the date the notification by the trustee is served upon him or her." (Prob. Code, § 16061.8, undesignated statutory references are to this code.)
In this case, we address whether Code of Civil Procedure section 1013 applies to section 16061.8, thereby extending the time to file an action contesting a trust past the 120-day period. We conclude that Code of Civil Procedure section 1013 does not apply. We also conclude that the petition does not relate back to an earlier filed petition that had been dismissed without prejudice. Accordingly, the probate court properly sustained a demurrer to a petition contesting a trust without leave to amend as untimely filed.
FACTUAL AND PROCEDURAL BACKGROUND
Henry and Kathleen Bridgeman created the Bridgeman Trust (the Trust), naming themselves as co-trustees. The Trust named their son, Edward, as a beneficiary. After Kathleen died, Henry became the sole trustor and trustee. Henry amended the Trust four times, twice in 1995 and once in 2002 (the third amendment) and March 2005 (the fourth amendment).
In 2004, Henry was diagnosed with dementia and possible Alzheimer's disease. In February or March of 2005, Donna Allen began taking care of Henry. In March 2005, Henry signed an amendment to the Trust, naming Allen as the sole beneficiary and successor trustee. Henry also appointed Allen as his attorney in fact on a durable power of attorney and advanced health care directive.
In 2009, Edward filed his first petition against Allen to determine the validity of the fourth amendment to the Trust. He generally alleged that the fourth amendment should be invalidated as Henry was mentally incompetent and Allen procured the amendment through undue influence. In 2010, the probate court sustained Allen's demurrer to the petition without leave to amend, finding he did not have standing to petition the court regarding the internal affairs of the Trust while the Trust remained revocable. The court noted that its ruling did not prevent Edward from filing a future petition when the Trust became irrevocable. The probate court entered a judgment of dismissal, noting that the dismissal was "without prejudice."
Allen was later removed as trustee and respondent Beverly Brito was appointed as the successor trustee of the Trust in Henry's conservatorship proceeding. In July 2011, Henry passed away. (All year references are to 2011, unless otherwise specified.)
On November 17, Edward's counsel personally submitted a renewed petition for filing with the probate court. The probate clerk refused to file the petition because it had exhibits attached directly to it, rather than through a separate notice of lodgment. On November 21, counsel resubmitted the petition with a notice of lodgment, and both submissions were file stamped that day.
Thereafter, Edward sought nunc pro tunc relief to change the filing date of the motion to avoid a problem with the statute of limitations. Brito then demurred to the petition as untimely under section 16061.8. The probate court denied Edward's motion for nunc pro tunc relief and sustained the demurrer without leave to amend, finding the petition was untimely. Edward timely appealed from the order. In the interest of judicial economy, we deem the ...