Time Extension for Out-of-State Responses to Legal Documents Does Not Apply to an Action Contesting a Trust

September 6, 2013 | Bulletin No. 1036986.1

In Bridgeman v. Allen (--- Cal.Rptr.3d ----, Cal.App. 4 Dist., August 30, 2013), a California court of appeal considered whether a Code of Civil Procedure (“CCP”) section applied to an action contesting a trust.  The CCP provides 10 additional days for deadlines to respond to legal notices when a respondent is outside the State of California.  However, the Probate Code requires challenges to a trust be made within 120 days of notice of the trust and that the notice is deemed given when it is placed in the mail.  The court held that because the specific Probate Code sections supersede the more general CCP sections, the time extension does not apply to deadlines for actions contesting a trust.

Facts

Henry and Kathleen Bridgeman created the Bridgeman Family Trust ("Trust"), naming themselves co-trustees and their son, Edward, as a beneficiary.  After Kathleen died, Henry became sole trustor and trustee.  In 2004, Henry was diagnosed with Alzheimer's disease and dementia.  Shortly thereafter, Donna Allen (“Allen”) began taking care of Henry.  Henry signed an amendment to the Trust naming Allen as the sole beneficiary and successor trustee.  Allen was later replaced as trustee by Beverly Brito (“Brito”).

In 2009, Edward filed a lawsuit against Allen challenging the validity to the amendment of the Trust on the grounds that Henry was mentally incompetent and subject to undue influence from Allen.  The probate court sustained Allen's demurrer to the petition finding that Edward did not have standing to act while the Trust remained revocable.  The court stated, however, that Edward was not precluded from filing suit again when the trust became irrevocable, upon Henry's death.

Henry died in July 2011.  Edward's counsel submitted a renewed petition on November 17, but the probate clerk refused to file it because exhibits were improperly attached.  The counsel properly resubmitted the petition on November 21.  Brito demurred and the probate court sustained the demurrer finding that Edward failed to file his challenge within the required 120 days of notification of the trust.  Edward appealed.

Decision

Probate Code Section 16061.8 contains the statute of limitations for petitions that contest a trust. It reads: "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."  However, CCP section 1013 provides 10 additional days to respond to the legal document if either the place of mailing or the address is outside the State of California.  Additionally, Probate Code Section 1215 specifies that service by mail is complete when the notice "is deposited in the mail."  At issue is whether Section 1013 applies to Section 16061.

It was undisputed that Brito served notice of the trust by mail on July 11, making 120 days later, November 8, the deadline for filing a challenge.  Edward argued that because he lives outside California, Section 1013 provided him 10 additional days, until November 18, one day after his counsel first submitted the petition on November 17.

The court explained that Section 1013 is a general statute that applies only in the absence of an exception expressly created by statute or rules.  Section 1215 is such an exception, the court found, meaning Section 1013 does not apply.  "Significantly, procedural matters in probate cases are governed by the [CCP] unless the Probate Code provides its own applicable rules."  In Section 1215, the Probate Code did indeed provide its own applicable rules.  Read together, the plain language of Sections 16061.8 and 1215 provides that an action to contest the trust must be made within 120 days of the date the notification was placed in the mail.  Because Section 1215 supersedes Section 1013, Section 1013 does not apply.  Edward was not entitled to 10 additional days to file his petition.  His petition was filed after the 120-day deadline of November 8 and the probate court was correct to sustain the demurrer.

Additionally, the court noted that Edward's petition did not relate back to his earlier petition challenging the amendment to the trust, which he was precluded from pursuing because the trust was still revocable at that time.  The court's ruling in that case merely permitted Edward to submit a new petition when the facts changed and the trust became irrevocable, but did not eliminate time restrictions for taking that action.

The probate court's judgment sustaining the demurrer was affirmed.

Questions

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Linda M. Monje | 661.864.3800