Bridgeman v. Allen

Opinion

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 Probate Code section 16061.8, thereby extending the time to file an

FACTUAL AND PROCEDURAL BACKGROUND

Henry and Kathleen Bridgeman created the Bridgeman Trust (the Trust), naming themselves as cotrustees. The Trust named their son, Edward C. Bridgeman, 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 J. 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 Edward 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 J. 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.

DISCUSSION

A

s a threshold matter, Brito asserts Edward lacks standing to appeal the dismissal of his petition because he is not a beneficiary under the third and fourth amendments to the Trust. Brito reasons that because Edward cannot inherit from the Trust, he is not legally aggrieved and thus lacks standing to pursue this appeal. We reject this contention.

“Standing to appeal is jurisdictional [citation] and the issue of whether a party has standing is a question of law [citation].” (People v. Hernandez (2009) 172 Cal.App.4th 715 , 719-720 [ 91 Cal.Rptr.3d 604 ].) To have standing to appeal, a person generally must be a party of record and be sufficiently aggrieved by the judgment or order. (Code Civ. Proc., § 902; County of Alameda v. Carleson (1971) 5 Cal.3d 730 , 736-737 [ 97 Cal.Rptr. 385 , 488 P.2d 953 ].)

Here, although Edward is a party to the appeal, Brito argues that he is not legally aggrieved because he cannot inherit from the Trust. The first, second, and third amendments to the Trust are not part of the record on appeal. Thus, Brito has not established that Edward was not a named beneficiary to the third amendment and that he would not benefit if his challenge to the fourth amendment succeeded. Accordingly, on this record, Brito has not established that Edward lacks standing to appeal the order dismissing his petition. (Conservatorship of Stewart (1969) 276 Cal.App.2d 211 , 215 [ 80 Cal.Rptr. 738 ] [party is aggrieved by order dismissing his action even though his grievance turns out to be legally without merit].) We need not, and do not, address the issue of Edward’s standing to bring the underlying action.

Edward challenges Brito’s standing to demur, arguing that he only sought relief against the prior trustee, Allen, and none of the claims or relief requested in the prayer are against Brito, the successor trustee. We disagree.

As the successor trustee, Brito had a duty to administer the trust in accordance with the trust instrument. (§ 16000.) Included in this duty is the requirement that the trustee has a duty to defend against any action that

As relevant here, Code of Civil Procedure section 1013, subdivision (a), provides that service by mail “is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended ... 10 calendar days if either the place of mailing or the place of address is outside the State of California but within the United States, . . . but the extension shall not apply to extend the time for filing notice of intention to move for new trial, notice of intention to move to vacate judgment pursuant to Section 663a, or notice of appeal. This extension applies in the absence of á specific exception provided for by this section or other statute or rule of court.” (Italics added.)

Because Edward lives outside of California, he argues that Code of Civil Procedure section 1013 applies to extend his time to file the petition by 10 days or until November 18, the day after he initially presented the petition for filing. Edward contends the probate court erred in not granting his motion for nunc pro tunc relief to set the filing date on November 17.

As we shall explain, we need not address whether the probate court erred in denying Edward’s motion for nunc pro tunc relief because Code of Civil Procedure section 1013 does not apply to extend his time to file the petition for an additional 10 days beyond November 8. Thus, even if the probate court had granted his motion, the petition would still be untimely.

Here, section 16061.8 must be read with the procedural statutes within the Probate Code pertaining to notice (§ 1200 et seq.). Section 16061.8 provides that any action to contest a trust cannot be brought “more than 120 days from the date the notification by the trustee is served upon [you].” Section 16061.8, however, does not specify the manner of service. Where, as here, notice is required to be served and no manner of service is specified, section 1217 provides that service can be by mail or personal delivery. Section 1215 authorizes notice by mail and specifies when mailing is complete for purposes of calculating applicable deadlines. Specifically, subdivision (e) of section 1215 provides that “[w]hen the notice or other paper is deposited in the mail, mailing is complete and the period of notice is not extended.” Read together, the plain language of these statutes provides that an action to contest the trust must be filed within 120 days from the date the notification by the trustee is served (§ 16061.8), service may be by mail (§ 1215, subd. (a)), and mailing is complete and may not be extended when

In contrast, Code of Civil Procedure section 1013 is a general statute that applies only in the absence of an exception expressly created by statute or rules. (Citicorp North America, Inc. v. Superior Court (1989) 213 Cal.App.3d 563 , 567 [ 261 Cal.Rptr. 668 ].) Here, a statutory exception exists. Namely, subdivision (e) of section 1215 provides that mailing is complete and may not be extended when the notice is “deposited in the mail.” Significantly, procedural matters in probate cases are governed by the Code of Civil Procedure unless the Probate Code provides its own applicable rules. (§ 1000.) The Probate Code provides that service is complete when the notice is “deposited in the mail.” (§ 1215, subd. (e).) Because the Probate Code has provided its own rule, Code of Civil Procedure section 1013 does not apply.

The situation here is analogous to one addressed by the court in Cole v. Los Angeles Unified School Dist. (1986) 111 Cal.App.3d 1 [ 222 Cal.Rptr. 426 ] {Cole). The issue in Cole was whether Code of Civil Procedure section 1013 applied to Government Code section 945.6, thereby extending the time for filing of a complaint five days past the six-month limit after the deposit in the mail of the notice of rejection. {Cole, at p. 3.) Government Code section 945.6 states, “[A]ny suit brought against a public entity on a cause of action for which a claim is required to be presented . . . must be commenced ...[!]... not later than six months after the date such notice is personally delivered or deposited in the mail.” (Gov. Code, § 945.6, subd. (a).) The Cole court concluded that Code of Civil Procedure section 1013 did not apply to extend the time period for filing suit because it was inconsistent with the plain meaning of Government Code section 945.6 that the six-month limitation period begins to run on the date the notice of rejection is deposited in the mail. (Cole, at p. 4.)

Finally, Edward’s reliance on Drvol v. Bant (1960) 183 Cal.App.2d 351 [ 7 Cal.Rptr. 1 ] (Drvol) is misplaced. In Drvol, a probate matter, the court held that Code of Civil Procedure sections 12, 12a and a prior version of 1013 applied to extend a deadline that fell on a Sunday to the following Monday. (Drvol, at pp. 357-358.) When Drvol was decided, section 1215 had not yet been enacted and a prior version of Code of Civil Procedure section 1013 provided an additional day to do an act after service. (Drvol, at p. 357; see

B. The Relation-back Doctrine Does Not Apply

The relation-back doctrine allows an amendment filed after the statute of limitations has run to be deemed filed as of the date of the original complaint “ ‘provided recovery is sought in both pleadings on the same general set of facts.’ ” (Kim v. Regents of University of California (2000) 80 Cal.App.4th 160 , 168 [ 95 Cal.Rptr.2d 10 ].) “In order for the relation-back doctrine to apply, ‘the amended complaint must (1) rest on the same general set of facts, (2) involve the same injury, and (3) refer to the same instrumentality, as the original one.’ ” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256 , 1278 [ 45 Cal.Rptr.3d 222 ].)

Edward points out that he filed his first petition in 2009 and that he filed the instant petition under the same case number, seeking the same relief against the same party, respondent Allen. He asserts that even if the probate clerk properly rejected the instant petition, it should nonetheless be deemed timely under the relation-back doctrine. Brito disagrees, noting that Edward cited no authority for a new petition relating back to the filing of a dismissed petition. As we shall explain, there was nothing for the instant petition to “relate back” to as the first petition was no longer pending.

After sustaining a demurrer, the probate court entered a judgment of dismissal on the first petition, stating the dismissal was without prejudice. Whether the first petition was still pending turns on whether the dismissal without prejudice of the first petition constituted a final appealable judgment. First, if the judgment of dismissal had not recited it was without prejudice, it would have been immediately appealable. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028 , 1032, fn. 1 [ 134 Cal.Rptr.2d 260 ] [propriety of ruling sustaining a demurrer without leave to amend is subject to review on appeal from the appealable order of dismissal].) We conclude that the inclusion of the words “without prejudice” did not change the appealability of the judgment.

In deciding this issue, we are guided by Topa Ins. Co. v. Fireman’s Fund Ins. Companies (1995) 39 Cal.App.4th 1331 [ 46 Cal.Rptr.2d 516 ] (Topa). There, the trial court entered an order barring further claims against Fireman’s Fund until costs and expenses described in a settlement agreement should exceed $1.5 million—the amount covered by Fireman’s Fund’s excess policy—and dismissed the complaint without prejudice. The appellate court held that the dismissal without prejudice consisted of a final adjudication under the peculiar

Here, as in Topa, the probate court’s recitation that the dismissal was without prejudice simply meant that at some indeterminate future time when the Trust became irrevocable, then Edward would be able to file a new action against the trustee based on those new facts. Moreover, allowing the relation-back doctrine to apply under these facts would defeat the purpose of section 16061.8, which is to impose a clear deadline to file any action contesting a trust. If the relation-back doctrine applied here, then any individual that filed an action contesting a trust while the trust was revocable would have an indefinite time period to file a similar action once the trust became irrevocable.

In summary, the probate court properly dismissed the petition because it was untimely filed.

DISPOSITION

The judgment is affirmed. Objector and respondent is entitled to her costs on appeal.

Haller, Acting P. J., and McDonald, J., concurred.

On September 27, 2013, the opinion was modified to read as printed above.