Estate of Pitts
Filed 6/30/08 Estate of Pitts CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
Estate of WILLIAM PITTS, Deceased. | B195804 |
JAMES ST. JULIAN, Petitioner and Appellant, v. JEWISH FAMILY SERVICE OF LOS ANGELES, Objector and Respondent. | (Los Angeles County Super. Ct. No. BP 073595) |
APPEAL from an order of the Superior Court of Los Angeles County, Mitchell L. Beckloff, Commissioner. Affirmed.
Law Office of Kayretha Hale Willis and Kayretha Hale Willis for Petitioner and Appellant.
Law Offices of Stuart D. Zimring, Stuart D. Zimring and Lewis Schlesinger for Objector and Respondent.
* * * * * *
On May 22, 2002, respondent trustee Jewish Family Service of Los Angeles (JFS) filed a petition under Probate Code section 17200[1]that sought a determination that, at the time of the death of William Pitts in December 2001, the Williams Pitts 2001 Revocable Inter Vivos Trust existed with assets of approximately $818,000. The trial court granted JFSs petition on August 27, 2002; a formal order to that effect was entered on September 17, 2002.
On September 3, 2002, appellant James St. Julian filed a petition in which he averred that he was the trustee under a trust created by Williams Pitts in 1997 and that the trust created in 2001 was invalid; after several continuances, this petition was denied without prejudice on January 28, 2003.
On January 19, 2006, appellant filed a new petition, which was identical to the one he had filed in September 2002. The trial court denied this petition as untimely and for the further reason that it was barred by its order of September 17, 2002. This appeal is from that order. We affirm.
DISCUSSION
1. The Relevant Statutes
Appellants principal argument on appeal is that he did not receive notice of the hearing that was held on August 27, 2002, nor of the formal order approving JFSs petition that was entered on September 17, 2002. We set forth the statutes that are relevant to this contention and the statute that sets forth when a petition contesting a trust must be filed.
Section 16061.7 provides that a trustee must serve a notificationto the beneficiaries and heirs when a revocable trust becomes irrevocable because of the death of the settlor of the trust. Subdivision (g) of section 16061.7 details the information that must be contained in the notice.[2] Subdivision (h) requires that the following warning, set out in a separate paragraph in not less than 10-point boldface type, must be contained in the notice: 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 mailed or personally delivered to you during that 120-day period, whichever is later. ( 16061.7, subd. (h).)
Section 16061.8 sets forth the applicable statute of limitations for petitions that contest a trust: 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 or her, or 60 days from the day on which a copy of the terms of the trust is mailed or personally delivered to him or her during that 120-day period, whichever is later.
2. Appellant Received Notice from JFS on February 12, 2002, and July 22, 2002
The record reflects that on February 12, 2002, and July 22, 2002, appellant received notices from JFS. These notices contained the content, and were in the form, that is required, respectively, by subdivisions (g) and (h) of section 16061.7.
3. Appellants Petition Filed on January 19, 2006, Was Not Timely
Respondent concedes that appellants petition that was filed on September 3, 2002, was timely, in light of the second notice of July 22, 2002. After being continued several times, this petition was dismissed without prejudice on January 28, 2003. The only record of this order is a minute order that provides no reason or background for this order.
Appellants second petition was filed on January 19, 2006. In this petition, as in the first one, appellant sought a determination that the trust that had been found valid by the September 17, 2002 order was in fact invalid and that an earlier trust, executed in 1997, was the only valid trust.
The second petition was not timely.
4. Appellants Contentions Are Without Merit
Appellant contends that the court lacked jurisdiction to enter the September 17, 2002 order because appellant was not notified of JFSs petition and he was therefore prevented from contesting the validity of the trust. This contention is without merit in that the record reflects that, by September 17, 2002, appellant had received two notifications that met statutory requirements of the pendency of JFSs petition to validate the 2001 trust.
Appellant contends that under section 8110, JFS was required to give 15 days notice of the hearing of a petition for administration of a decedents estate. But section 8110 did not apply to the petition filed by JFS. As appellant concedes, section 8110 applies to a hearing on a petition for administration of a decedents estate. As we have noted, JFS was a trustee petitioning under section 17200 to validate a trust that became irrevocable because of the settlors death. It was not a petition for the administration of a decedents estate.
We reject appellants contention that JFS committed extrinsic fraud by failing to notify appellant of the hearing on August 27, 2002, that led to the order of September 17, 2002. JFS did not commit fraud but rather complied fully with the form and the substance of the notification procedures set forth in section 16061.7.
During oral argument, appellants counsel claimed that Pitts lacked the capacity to execute the trust and that he was subject to undue influence when he did so. These assertions are based on the allegations of the petition filed on January 19, 2006. Not only are these allegations simply that, i.e., allegations of fact and not evidence, neither the trial court nor this court can consider them since the petition was time-barred.
We must also reject the unsupported claim that appellant did not receive the notices mailed on February 12, 2002, and July 22, 2002. The petition filed by appellant on September 3, 2002, reflects that he was on notice of the matters that were the subject of these notices.
Finally, as pointed out by respondent in oral argument, the entire controversy was resolved, settled and dismissed in the settlement agreement between appellant and others entered into during October and November 2003.
5. We Decline to Dismiss the Appeal
Respondent points out that appellants notice of appeal states that the appeal is from the order denying his petition to determine the existence of a trust but that the entire thrust of the appeal is to challenge the order of September 17, 2002. Respondent points out that the latter order is, obviously, long since final and that the time to appeal that order has elapsed; respondent contends that we should dismiss the appeal.
If appellant had pursued his timely petition that was filed on September 3, 2002, his petition could have effectively challenged the validity of the order entered on September 17, 2002. Thus, the problem is not that the latter order is long since final but that appellants second petition was filed over three years too late. It is clearly time-barred under section 16061.8.
DISPOSITION
The order (judgment) is affirmed. Respondent is to recover its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
FLIER, J.
We concur:
COOPER, P. J.
BIGELOW, J.
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[1] All statutory references are to the Probate Code.
[2] (1) The identity of the settlor or settlors of the trust and the date of execution of the trust instrument. [] (2) The name, mailing address and telephone number of each trustee of the trust. [] (3) The address of the physical location where the principal place of administration of the trust is located, pursuant to Section 17002. [] (4) Any additional information that may be expressly required by the terms of the trust instrument. [] (5) A notification that the recipient is entitled, upon reasonable request to the trustee, to receive from the trustee a true and complete copy of the terms of the trust. ( 16061.7, subd. (g).)
