Demurrer
2 Navarro-Trust TENTATIVE RULING
Case: Navarro – Trust 01401457
DEMURRER (ROA 12)
Respondent David Orlando Meza (“Respondent”) demurrers to the Petition for Instructions (ROA 2) filed by Petitioner Myrna Dominguez (“Petitioner”) on the ground that it is barred by the 120-day statute of limitations to contest a trust pursuant to Probate Code section 16061.8.
This case involves the J.R. Navarro Living Trust dated 5/3/00 (“Trust”). The Trust was amended twice in 2001 and once in 2007. The Trust was Restated in 2017 and amended again in 2021. Petitioner is the Successor Trustee.
On 7/31/25, Petitioner filed a Petition for Instructions in which she alleges that Respondent was the settlor’s caretaker when the 2017 Restatement and the 2021 Amendment were executed. Petitioner seeks an “instruction” as to whether she should distribute Trust assets pursuant to the 2007 Amendment or the 2017 Restatement and 2021 Amendment. The Petition further prays for a determination as to whether the 2017 Restatement and 2021 Amendment are valid and enforceable; for a determination as to whether Respondent is disqualified as a beneficiary pursuant to Probate Code section 21380; and a determination as to whether Respondent can overcome the presumption set forth in Probate Code section 21380.
Trust Contest
Petitioner argues that her Petition is not a trust contest. Based on the record presented, the court is not persuaded.
The Petition clearly seeks a determination as to whether the distributions made to Respondent in the 2017 Restatement and the 2021 Amendment are valid or whether they were procured through undue influence by Respondent. That is a quintessential trust contest.
Petitioner’s argument that she does not want to invalidate these instruments in their entirety is immaterial. Contesting the validity of a particular distribution in a trust instrument is still a trust contest. (“‘Direct Contest’ means a contest that alleges the
invalidity of a protected instrument or one or more of its terms based on . . . undue influence.” (Prob. Code § 21310(b)(4), emphasis added.)
120-Day Statute of Limitations
Petitioner served herself with notice by trustee pursuant to Probate Code section 16061.7 on 4/1/25. The 120-day deadline for Petitioner to contest the Trust was, therefore, 7/30/25. Petitioner did not file this Petition until 7/31/25, which is one day after the deadline.
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Petitioner argues that the 120-day limit began to run on 4/2/25, when the last notice to beneficiary was served. The court does not find such argument meritorious. First, such argument relies on evidence presented in the declaration of Thao Nguyen submitted in opposition to this demurrer. When ruling on a demurrer, the court is limited to the “four corners” of the pleading – which includes the pleading, any exhibits attached, and matters of which the court is permitted to take judicial notice. (Blank v. Kirwan (1985) 39 Cal. 3rd 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) The Petition alleges that all beneficiaries were served on 4/1/25 and attaches the proof of service as Exhibit “B.” Thus, the Petition is untimely based on the face of the pleading.
Second, the plain language of Probate Code sections 16061.7 and 16061.8 makes it clear that each beneficiary has 120 days from the date the notice is served on that beneficiary to contest the trust. Probate Code section 16061.7 requires the notification by the trustee to state, “You may not bring an action to contest the trust more than 120 days from the date this notification by the trustee is served upon you or 60 days from the date on which a copy of the terms of the trust is delivered to you during that 120-day period, whichever is later.” (Prob.
Code § 16061.7(h), emphasis added.) Likewise, Probate Code section 16061.8 states, “A person upon whom the notification by the trustee is served . . . shall not bring an action to contest the trust more than 120 days from the date the notification by the trustee is served upon the person, or 60 days from the date on which a copy of the terms of the trust is delivered pursuant to Section 1215 to the person during that 120- day period, whichever is later.”
Finally, contrary to Petitioner’s arguments, the court’s equitable powers do not allow the court to override any legislative mandates, including any statute of limitations.
Based on the foregoing, the Petition is time-barred by the 120-day statute of limitations.
Leave to Amend
Petitioner requests leave to amend to allege causes of action for conversion and financial elder abuse, as well as an 850 Petition. The Petition alleges facts that indicate Respondent may have wrongfully taken $40,000 in rental income and $10,000 in cash from the decedent. It further alleges that there were a series of questionable withdrawals from the decedent’s accounts during the time that decedent was incapacitated and Respondent was his caretaker.
The court grants Petitioner limited leave to amend to allege causes of action based on such or similar facts and legal theories. Petitioner is not granted leave to amend to include any cause of action which would necessitate a determination of the validity of any trust instrument or any portion thereof.
Any amended petition shall be filed within 10 days of notice of this ruling, extended for method of service.
Counsel for Respondent is ordered to serve notice of ruling