Opinion
2d Civ. B327289
01-16-2024
NICOLE EMILY JORDAN, Plaintiff and Appellant, v. ANGELA JORDAN HART et al., Defendants and Respondents
Roshanian Payman, Tamineh Roshanian, for Plaintiff and Appellant Nicole Emily Jordan. Kirker Wright Law Group, Vanessa Kirker-Wright; Cristi Michelon Vasquez for Defendant and Respondent Angela Jordan Hart.
NOT TO BE PUBLISHED
Superior Court County Super. Ct. No. 21PR00040 of Santa Barbara Hon. Colleen K. Sterne, Judge.
Roshanian Payman, Tamineh Roshanian, for Plaintiff and Appellant Nicole Emily Jordan.
Kirker Wright Law Group, Vanessa Kirker-Wright; Cristi Michelon Vasquez for Defendant and Respondent Angela Jordan Hart.
CODY, J.
Nicole Jordan appeals from a probate court order sustaining Angela Jordan Hart's demurrer to a petition for an order confirming the validity of a trust amendment (the petition). She contends the probate court erred when it construed the petition as a trust contest and barred it as untimely under Probate Code section 16061.8. We disagree and will affirm.
All unlabeled statutory references are to the California Probate Code unless stated otherwise.
FACTUAL AND PROCEDURAL BACKGROUND
Borimir Jordan and Virginia Jordan were married and had three daughters, Nicole, Angela, and Jennifer. The couple created the Borimir and Virginia Jordan Family Trust (Trust) in 1998. The Trust was amended several times. The amendments relevant here are the Third Amendment to and Complete Restatement of Declaration of Trust in 2007 (Third Amendment), the Fourth Amendment to Declaration of Trust in 2010 (Fourth Amendment), and the Fifth Amendment to Declaration of Trust in 2012 (Fifth Amendment).
We refer to members of the Jordan family by their first names, for clarity and convenience. No disrespect is intended.
Borimir died in March of 2020. Virginia died in November of 2020.
Mark Watson was appointed successor Trustee pursuant to the terms of the Trust and the Fourth and Fifth Amendments in December 2020. On January 8, 2021, a Notice by Trustee was mailed to Angela, Nicole, and Jennifer. Included with the mailed Notice were copies of the Trust, and the Third, Fourth and Fifth Amendments. (§ 16061.7.)
On January 14, 2021, Nicole sent an email to Watson's attorney challenging Watson' appointment because the Trust "has been changed." She asserted Watson's appointment by Homer Sheffield, the Jordans' attorney and one of the original Trustees appointed under the Trust, was invalid because Sheffield "was removed from the trust when my parents decided to make changes in 2017/2018" and that Sheffield "[a]t the very least . . . knows that there is a very good chance [the Trust] has been changed and he has been removed from it." On January 27, 2021, Watson petitioned for an order confirming himself as trustee and confirming the trust assets (Watson's petition). The petition explained that Watson had been contacted by Nicole claiming "the TRUST documents in [Watson's] possession may have been amended and/or revoked, or that such documents do not authorize [Watson] to act on behalf of the TRUST" but that Nicole "has refused to provide copies of the documents she claims to super[s]ede those . . . to which [Watson] is acting." Although she received notice of the petition and the hearing, Nicole did not file any objection and she did not appear at the hearing. The probate court concluded "no evidence . . . support[ed Nicole's] claims" and granted Watson's petition in March 2021. The court's formal order was served on Nicole in April 2021.
More than a year later, in May 2022, Nicole petitioned to establish herself "sole beneficiary and successor trustee of the Trust," and to establish trust assets, pursuant to the Sixth Amendment. She asserted her parents had validly executed the Sixth Amendment in July of 2019 without the assistance of counsel. Nicole requested the court invalidate the previously confirmed Fourth and Fifth Amendments of the Trust and remove Watson as trustee, among other relief.
Angela demurred. She contended the petition was barred because Nicole filed it well beyond the 120-day statute of limitations. (§ 16061.8.) Jennifer filed a notice of joinder in the demurrer. The probate court sustained the demurrer as to all causes of action, reasoning that Nicole's petition was untimely under section 16061.8.
The court sustained the demurrer with leave to amend Nicole's request for an accounting.
Nicole appealed. (§ 1304.)
DISCUSSION
Nicole contends the petition was not a trust contest and therefore was not subject to the 120-day statutory limitation period. She also asserts that even if section 16061.8 were applicable: (1) the limitation period was tolled by the delayed discovery doctrine; (2) the court improperly rejected application of equitable estoppel; and (3) the court erroneously concluded her other causes of action were also time-barred. None of these contentions have merit.
Standard of Review
"We review de novo a trial court's ruling on a demurrer. [Citation.] When reviewing an order sustaining a demurrer, we accept as true the material facts alleged in the complaint or petition, but not contentions, . . . deductions, or conclusions of fact and law. [Citation.]" (Estate of Eimers (2020) 49 Cal.App.5th 97, 103.) "[W]e review the trial court's order to the extent [that] it is based upon the interpretation of sections 16061.7 and 16061.8 de novo. [Citation.]" (Straley v. Gamble (2013) 217 Cal.App.4th 533, 536-537 (Straley).)
Section 16061.8Section 16061.8 provides the timeframe in which an action to contest a trust may be brought. "[I]n relevant part: 'No person upon whom the notification by the trustee is served pursuant to this chapter . . . may bring an action to contest the trust more than 120 days from the date the notification by the trustee is served upon him.'" (Straley, supra, 217 Cal.App.4th at p. 537, quoting § 16061.8.)
Nicole contends section 16061.8 does not apply to her petition because it was not a "trust contest." Instead, she claims her petition's purpose was to validate and interpret the Sixth Amendment and that "a petition that does not question the validity of a trust but rather, seeks to determine and implement the settlor's express wishes - such as a petition asking the court to construe a provision within the trust - is not a contest" - "even if validating the Sixth Amendment might have the incidental effect of invalidating the Fourth and Fifth Amendments to the Trust." We disagree.
"In determining whether [a petition] constitutes an action to contest the trust within the purview of section 16061.8, we look to the substance of that petition and its 'practical effect.' We are not bound by its label. [Citations.]" (Estate of Stoker (2011) 193 Cal.App.4th 236, 241.)
Courts will generally construe a "proposed action" to be a contest if it "would 'effectively nullify or thwart [a] provision[] in the trust instrument' or 'result in the nullification of [the trustor's] clearly stated intent ....'" (Giammarrusco v. Simon (2009) 171 Cal.App.4th 1586, 1601 (Giammarrusco).)
However, "[a] proposed pleading concerns the interpretation of an instrument when its allegations put in issue a provision or term of the instrument that 'is ambiguous and requires judicial interpretation.'" (Donkin v. Donkin (2013) 58 Cal.4th 412, 434, citing Cory v. Toscano (2009) 174 Cal.App.4th 1039, 1044.)
The petition did not seek to merely interpret the Trust, as Nicole suggested. To validate the Sixth Amendment would "'effectively nullify or thwart'" the terms of the Fourth and Fifth Amendments to the Trust by making them wholly invalid. (Giammarrusco, supra, 171 Cal.App.4th 1601.) Furthermore, the Sixth Amendment was not ambiguous so as to require judicial interpretation. (Donkin v. Donkin, supra, 58 Cal.4th at p. 434.) It expressly deleted the Fourth and Fifth Amendments and eliminated Angela and Jennifer's interest in the Trust. The Fourth and Fifth Amendments were the subject of the Notice by Trustee that Nicole received in January of 2021. Any action to contest the validity of those amendments must have been filed no later than May of 2021. Nicole did not file the petition until March of 2022, 10 months after the 120-day statutory limitation period had expired.
The probate court correctly construed the petition as an action to contest the Trust. We agree with the court's conclusion that the petition was time-barred under section 16061.8.
Delayed Discovery Rule
To the extent section 16061.8's 120-day statutory limitation period applies, Nicole contends it was tolled by her "delayed discovery of the full, properly signed Sixth Trust Amendment" in 2022. The petition alleged that Nicole found an incomplete copy of a purported Sixth Amendment in 2020, but she "could not find the original" and "assumed Jennifer or Ang[ela] must have taken it." Nicole "did not search for the real Sixth Amendment" until 2022, after her attorney instructed her to search the entire house, "room by room." Nicole asserted she "was not able to find the document on her own" before then "because she suffers from mild depression and bipolar disorder without mania, and since her parents' death, she has been experiencing severe social anxiety and recurring migraines and toothache, interrupting her normal day to day functions." "These conditions," she maintained, "coupled with financial hardship," supported application of the delayed discovery rule. We conclude the rule did not apply here.
"The discovery rule provides that the accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause. [Citation.] A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her. [Citation.]" (Jolly v. Eli Lilly &Co. (1988) 44 Cal.3d 1103, 1109, fn. omitted.) "[T]he statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, . . . [she] need not be aware of the specific 'facts' necessary to establish the claim." (Id. at pp. 1110-1111.) At that point, "she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her." (Id. at p. 1111.)
We need not decide whether the delayed discovery rule applies to section 16061.8, because even if it did, it is inapplicable here. The verified petition alleged that Nicole found a copy of the Sixth Amendment in 2020, after her mother's death and prior to Watson sending out the Notice of Trustee. Nicole alleged that she emailed Watson's counsel in January of 2021, informing him that he was acting on an outdated copy of the Trust. Her petition allegations clearly show Nicole knew of the existence of the purported Sixth Amendment as early as 2020 but she did not attempt to locate the original until 2022, after the statute had run.
Equitable Estoppel
Nicole contends Angela was estopped from invoking section 16061.8 "due to [her] own bad faith and fraudulent conduct," including "fraudulent concealment and misrepresentations that prevented [Nicole] from discovering and asserting her rights under the Sixth Trust Amendment." The petition alleged "Ang[ela] knew the trust had been amended but threatened Nicole 'if you bring a new amendment you'll go to jail.'" Nicole believed "she [was] capable of delivering [on] her threats." We find no basis for her to assert equitable estoppel.
"'Equitable estoppel . . . is not concerned with the running and suspension of the limitations period, but rather comes into play only after the limitations period has run and addresses itself to the circumstances in which a party will be estopped from asserting the statute of limitations as a defense to an admittedly untimely action because his conduct has induced another into forbearing suit within the applicable limitations period.'" (Battuello v. Battuello (1998) 64 Cal.App.4th 842, 847, quoting Bomba v. W.L. Belvidere, Inc. (7th Cir. 1978) 579 F.2d 1067, 1070.) The doctrine derives "'from the equitable principle that no [person] will be permitted to profit from [their] own wrongdoing in a court of justice.'" (Battuello, at pp. 847-848.) "[T]o assert equitable estoppel, the following four elements must be present: (1) the party to be estopped must be apprised of the facts; (2) [they] must intend that [their] conduct be acted on, or must so act that the party asserting estoppel had a right to believe it was so intended; (3) the party asserting estoppel must be ignorant of the true state of facts; and (4) [they] must rely upon the conduct to [their] injury." (Sofranek v. County of Merced (2007) 146 Cal.App.4th 1238, 1250 (Sofranek).)
Even assuming Angela knew of the Sixth Amendment, Nicole's "allegations ma[d]e clear that she was well aware of her claim based upon the alleged Sixth Amendment even prior to" Watson's filing of the notification of trustee. Nicole was not "ignorant of the true state of facts." (Sofranek, supra, 146 Cal.App.4th at p. 1250.) Thus, she cannot establish the third element of equitable estoppel. (Ibid.) Additionally, any alleged threat or misrepresentation occurred before Virginia died and, therefore, could not have impacted the accrual of Nicole's claim. We agree with the probate court that Nicole failed to explain "why any of these events had any bearing on how or why Nicole did not timely file her petition."
Nicole's Other Claims
Nicole sought to remove Watson as trustee because the Sixth Amendment named Nicole the successor trustee. Likewise, she contended Watson breached his fiduciary duty to Nicole because he acted contrary to her interests as sole beneficiary pursuant to the terms of the Sixth Amendment. Nicole contends the probate court improperly dismissed her claims against Watson for removal and breach of fiduciary duty as untimely. Again, we do not agree.
Aside from Nicole's reliance on the terms of the alleged Sixth Amendment, she made no allegations constituting a claim against Watson in his capacity as trustee. (See § 15642, subd. (b) [listing the grounds for removal of trustee].) As previously established, her claims were barred under section 16061.8 to the extent they relied on the purported Sixth Amendment. We conclude the probate court properly sustained Angela's demurrer to the petition as untimely.
DISPOSITION
Judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: GILBERT, P. J., BALTODANO, J.