1 Filed 12/23/14 Halligan v. Hillbrand CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

MARJORY HALLIGAN, Plaintiff and Appellant,

v. DAVID HILLBRAND, as Special Administrator, etc., Defendant and Respondent. A138328
(City & County of San Francisco Super. Ct. No. PTR-11-294184)

Marjory Halligan (Halligan) appeals from an order entered after a bench trial in which the probate court denied her first amended petition fo r an order determining the validity of an amendment to a family trust document created by Ada C. Unruh, deceased, “so the [s]uccessor [t]rustee must administer and distribute the trust assets in accordance with the terms of the documents.” Halligan presents various arguments challenging the court’s ruling that her first amended petition was time-barred under Probate Code section 16460, subdivision (a)(2) (§ 16460(a)(2)) 1 . We see no merit to Halligan’s contentions and, accordingly, affirm the order.

FACTS A. Background In 1992, Ada C. Unruh (Unruh) created the Ada C. Unruh Revocable Living Trust (hereafter referred to as the trust agreement), naming herself as both trustor and trustee.

1 All further unspecified statutory re ferences are to the Probate Code.2 The trust provided, in pertinent part, that on Unruh’s death certain trust personal property
would be distributed to desi gnated beneficiaries, Unruh’s house in San Francisco would devise to her nephew by marriage, W illiam James Shiloh Unruh (known as and hereinafter referred to as Shiloh), the residue of the trust personal property would be sold,
and the remainder of the trust es tate would be distributed to si x designated beneficiaries. The trust also provided that as trustor Unruh “[had] the right at any time by an instrument delivered in writing to the Trustee to amend, modify, alter, revoke or terminate this trust in whole or in part,” but that after her d eath, the trust “would be irrevocable” and not subject to amendment. At the death of Unr uh, her brother-in-law Cecil Unruh was to act as successor trustee; if he was unwilling or unable to act, or failed to complete the administration of the trust, then Shiloh was to act as successor trustee; if he was unwilling or unable to act, or failed to complete the ad ministration of the trust, then Lawrence K. Unruh (another brother-in-law) was to serve as successor trustee. Sometime in 1998, Unruh met Halligan at a party. They became friends and continued to meet socially over the next seve ral years. In 2002, Halligan moved into Unruh’s house at the latter’s request. Ha lligan acted as Unruh’s companion and Unruh paid Halligan a stipend of $1, 200 per month that was late r increased to $1,300. On November 14, 2007, Un ruh met with her attorney Edward Watson (Watson) at her home. Unruh spoke with Watson about th e changes she wanted made to the trust agreement. Unruh wanted he r San Francisco house to go to Halligan and she wanted to change her bequest to Shiloh to $25,000. Watson said he was concerned that Shiloh would challenge the bequest. He advised Unruh to provide Shiloh with a larger sum and she agreed to do so. Before her meeting with Wats on, Unruh had prep ared a handwritten note indicating the changes she wanted made to her trust. The handwritten note initially stated, in pertinent part, “My house to Marjor y Halligan if she is st ill with me,” “2nd choice William James ‘Shiloh’ Unruh,” “$25 ,000 to Betty Champaign,” $25,000 to William James ‘Shiloh’ Unruh . . . [when he ge ts his junk out of my garage],” and “Rest to Marjory Halligan.” During her conversation with Watson, Unruh apparently crossed out the amount she had initially provided fo r Shiloh and changed it to $50,000. At3 Watson’s request, Unruh gave th e handwritten note to him. He asked for the handwritten
note because it had all the information he woul d need to draft a formal trust amendment
document. Watson did not co nsider Unruh’s handwritten note to be a valid trust modification, and Unruh did not say anything from which Watson understood that she thought the handwritten note was a trust m odification. Accordin g to Watson, Unruh knew and understood that Watson was goi ng to prepare a formal trust amendment document. However, Watson was not able to prepare the document before Unruh’s death on December 2, 2007. On the day Unruh died, Ha lligan called Watson to determine “what [her] protocol was” for the disposition of Unr uh’s estate. Halligan’s call was prompted by the fact that on November 14, 2007, from an adjoinin g room, she had overhead the entire conversation between Watson and Unruh regardi ng Unruh’s wish to change her trust. Watson said Halligan need ed to contact Shiloh and that sh e should work th ings out with
Shiloh. 2 Halligan “freaked out” because she believed she was to contact Cecil Unruh if anything happened to Unruh. When Ha lligan asked Watson about the “notes” 3 he had taken from Unruh on November 14, 2007, Wats on said he would have to check his file and get back to her. Halligan then called Shiloh and told him th at Unruh had changed “her will,” leaving her house to Halligan and leaving him $50,000. Shiloh said he wanted to see Halligan to review the trust agreement a nd explain the concept of a beneficiary. At their meeting, Shiloh gave Hallig an a copy of the trust agre ement. He offered to let Halligan stay in the house until he r death, and drafted a contract to that effect on the back

2 After the death of Unruh, Cecil Unruh d eclined appointment as successor trustee, and the court appointed Shiloh as successo r trustee; Lawrence Unruh had predeceased Unruh.
3 Although Halligan alleged in her first amended petition that Unruh handed Watson several handwritten notes dated November 13, 2007, at the trial only a single handwritten note, which was unsigned and undated, was ad mitted into evidence af ter being identified as Unruh’s handwritten note given to Watson on November 14, 2007.4 of the trust agreement. Halligan signed th e contract because Shiloh “threatened” her. 4 Halligan again spoke with Wa tson and asked him for Unruh’s notes. Watson said Unruh’s notes were “non-testamentary,” but he agreed to her request to allow her counsel
to contact him to review the notes. 5 In the latter part of December 2007 before Christmas, Halligan called Wats on and asked him about his “fee ,” and he replied, it was $5,000. She did not know how much he wo uld charge “for the house visit and to administer [Unruh’s] estate,” so she offered him a legal fee of $25,000. She asked him to disregard the existing trust agreement and treat Unruh’s handwritten note as a trust amendment, giving Unruh’s house to Halligan and disinheriting Shil oh. Watson did not accept the offered fee and told Halligan he was offended by the “offer” and it was not “his decision to make.” Watson thought Halligan’s request was a bribe because a $25,000 legal fee for the size of Unruh’s estate was “way out of line.” Halligan
threatened Watson an d then hung up. To prepare for meeting co unsel and to “preserve her testimony,” Halligan drafted several multi-paged documents, dated De cember 12, 2007, December 23, 2007, December 26, 2007, and December 28, 2007, in which she wrote down everything she remembered since the day Watson came to the house to meet with Unruh. Halligan first met with an attorney on D ecember 31, 2007, and later me t with other counsel.

4 At the trial, Halligan testif ied that she kept the signed co ntract and put it in a hope chest in Unruh’s bedroom. Ho wever, when Halligan went to retrieve the document a few days later, she found that someone had “rifle d” through the hope chest and the document was missing. In lieu of the missing docu ment, Halligan found “another brand-new copy” of the trust agreement with no writing on the back.
5 At the trial, Watson testified that at various times, while he represented Shiloh, Halligan called and asked Watson for Unr uh’s handwritten note, which was ultimately seen by Halligan in March 2011. On instruction of Shiloh, Wa tson had refused to earlier produce the note because it was his understa nding that the note was “just [Unruh’s] directions” to him and it was not “an actual amendment to her trust.” Nor was the note testamentary because it was not dated or si gned by Unruh. Howe ver, Watson admitted it was not for him to decide if the note was a valid trust amendment and he never sought court guidance as to what to do with the note.5 In 2008, Watson, as counsel for Shiloh, sent Halligan a letter “of January 7th.” The letter stated that Halligan was no longer Unruh’s employee and her right to remain in the house was terminated. Later, Shiloh, repres ented by other counsel, filed an unlawful detainer action against Halligan and she was ev icted from the house. After the eviction, Halligan did not attempt to regain entry to the house. B. Probate Court Proceedings On January 5, 2011, Halligan filed a pe tition in the probate court, pursuant to section 17200, seeking an order determini ng that Unruh’s handwr itten note given to Watson on November 14, 2007, constituted a valid amendment and modification “to the Trust, so the Successor Trustee must admini ster and distribute the trust assets in
accordance with the terms of the documents.” After the c ourt sustained, in part, a demurrer filed by Shiloh, as successor trus tee, Halligan filed a first amended petition (FAP), the operative pleading, on August 17, 2011. In the FAP, Halligan again sought an order determining that Unruh’s handwritten note given to Watson on November 14, 2007, constituted a valid amendment and modification “to the Trust, so the Successor Trustee must administer and distribute the
trust assets in accordance with the terms of the documents.” In support of her request, Halligan alleged Unruh’s handwritten note satisfied the requirements of a trust amendment, under both the trust agreement a nd the Probate Code. She also alleged that Shiloh, as successor trustee, had violated his duties as trustee, by concealing Unruh’s handwritten note from Halligan and the probat e court; promoting his individual interest as the primary beneficiary of the original tr ust; putting his own interest ahead of Halligan when there was a conflict; and failing to admi nister and distribute the trust assets in
accordance with Unruh’s wishes . Halligan alleged, “[t]his Petition is not an action for damages for fraud, contempt, or theft. All Pe titioner seeks is an order confirming that the handwritten trust amendment[ ] [is] valid a nd administration of the Trust in accordance with the amendment[ ].” In addressing whether her claim was barre d by any statute of limitations, Halligan alleged she could not have prosecuted this cl aim for the proper administration of the trust6 “until she was made fully aware of the co ntents of the trust instrument, including amendments.” Although aware of Unruh’s tr ue wishes, Halligan did not know, and could not reasonably be expected to know, that the handwr itten note given to Watson
constituted a trust amendment a nd modification. She further alleged that regardless of any fraud that may or may not have taken pl ace, the trust administration was subject to continued probate court jurisdiction and theref ore, it was irrelevant when she knew or
should have known the conten ts of Unruh’s handwritten no te. According to Halligan, “[w]hat matters is that the Tr ust is not being administered as it was intended, and [she] was entitled to a ruling from the Probate Court to that effect compelling [Shiloh] to properly administer the Trust for the be nefit of [herself] and the other named beneficiaries.” She also alleged that “as th e named beneficiary” of the trust as amended by Unruh, she was entitled to notice and a copy of the trust and all amendments, and until such notice was given, the lim itations period on a claim to co ntest the trust had not begun

to run. David Hillbrand, as special ad ministrator of Shiloh’s estate, 6 filed an objection, arguing, in pertinent part, that the FAP was barred by the thre e-year limitations period for a claim for breach of trust by a trustee in section 16460(a)(2). Ac cording to Hillbrand, Halligan “discovered, or reasonably should ha ve discovered, that the document that she
claims to be a trust modification was a trus t modification as of the death of [Unruh] on December 2, 2007. [Halligan’s] petition was initially filed on January 5, 2011, but she should have filed her petition no late r than December 3, 2010.”

6 Shortly after the court granted his demu rrer to Halligan’s initia l petition and before the filing of the first ame nded petition, Shiloh died on September 1, 2011. David Hillbrand, as special administrator of Sh iloh’s estate and Halligan, through their attorneys, agreed to the appointment of Debra J. Dolch, doing business as Debra J. Dolch Fiduciary Services, a California-licensed privat e fiduciary, to serve as successor trustee, which was approved by the probate court. On June 22, 2012, Dolch filed a report concerning the sale of Unruh’s San Francisc o house and sought an order confirming the sale to a third party, which request was not opposed. The property was sold on July 16, 2012 for the sale price of $1,301,000, and Do lch, as successor trustee, has possession of the net proceeds of the sale. Dolch did not f ile any pleadings in the probate court and has not filed any brief in this court.7 A bench trial was held, during which the probate court heard testimony from several witnesses including Hallig an and Watson. The court also admitted into evidence several documents including th e trust agreement and Unruh’ s handwritten note given to Watson on November 14, 2007. After considering Halligan’s ob jections to its proposed statement of decision, the probate court issu ed a statement of decision denying the FAP on the ground it was barred by the three-year lim itations period in se ction 16460(a)(2). The court found the limitations period began to run on Unruh’s death on December 2, 2007, and Halligan discovered or should have discovered th e facts giving rise to the subject of her claim in Dece mber 2007, more th an three years before her initial petition was filed on January 5, 2011. The court also explained its reasons for rejecting Halligan’s contentions that the limitations period in section 16460(a)(2) was tolled until Shiloh formally assumed the role of successo r trustee and, alternatively, there was no applicable statute of limitations becaus e the FAP only sought to have Unruh’s
handwritten note declared a trust amendmen t and did not seek re lief for any alleged misconduct by Shiloh as successor trustee. Th e probate court filed an order denying the FAP, and Halligan’s timely appeal ensued.

DISCUSSION A. Applicable Law “The probate court has exclusive jurisd iction over proceedings concerning the internal affairs of the trust. (§ 17000( a).) Such proceedings include ‘[d]etermining questions of construction of a trust inst rument’; ‘[d]etermining the existence or nonexistence of any immunity, power, privilege, duty, or right’; ‘[s]ettling the accounts and passing upon the acts of the trustee’; ‘[i]nstructing the trustee’; ‘[c]ompelling the trustee to report information about the trust or account to the beneficiary’ if certain conditions have been met; ‘[c] ompelling redress of a breach of the trust by any available remedy’; and ‘[a]pproving or di recting the modification or te rmination of the trust.’ (§ 17200(b)(1), (2), (5), (6 ), (7), (12), (13).)” ( Soria v. Soria (2010) 185 Cal.App.4th 780, 786 ( Soria ).) “A proceeding concerning the intern al affairs of a trust is initiated by petition to the probate court pursuant to sections 17200(a) and 17201” ( Soria , at pp. 786-8 787), and is governed by other sections of th e probate code concerning the specific claim raised by the petitioner. At issue here are the separate probate code sections relating to proceedings concerning a trustee’s duties in general and to report information and
account to beneficiaries and the liabilities of trustees to beneficiaries (§§ 16000-16015, 16060-16069, 16400-16462.) 7 The probate code sections addressing a trustee’s duties include the duty to administer the trust according to the terms of the trust inst rument (§ 16000); the duty of loyalty (§ 16002); the duty to deal impartially with the bene ficiaries (§ 16 003); the duty to avoid conflicts of interest (§ 16004); and the duty to report info rmation and account to beneficiaries (§ 16060). “A violation by the trustee of any duty that the trustee owes the beneficiary is a breach of trust.” (§ 16400.) “If a trustee commits a breach of trust or threatens to commit a breach of trust,” a beneficiary may commence a proceeding for various purposes including “[t]o compel the tr ustee to perform the trustee’s duties;” “[t]o enjoin the trustee from committing a breach of trust;” “[t]o comp el the trustee to redress a breach of trust by payment of m oney or otherwise;” “to set as ide acts of the trustee;” “to impose an equitable lien or a constructive trust on trust property;” or “any other appropriate remedy provided by statute or th e common law.” (§ 16420, subd. (a)(1), (2), (3), (6), (8), (b).) Sect ion 16460 provides, in pertinent part: “(a) Unless a claim is previously barred by adjudication, consent, limitation or otherwise: (1) . . . (2) . . . [I]f a beneficiary does not receive any written account or report, the claim is barred as to that beneficiary unless a proceeding to assert the claim is commenced with in three years after the beneficiary discovered, or reasonably sh ould have discovered, the subject of the claim.” Section 16460’s limitations period, codifying a discovery rule, was added, in part, as a rejection of the contrary conclusion reached in Di Grazia v. Anderlini (1994) 22 Cal.App.4th 1337, in which the court there held that the limitations period on actions by a

7 The Probate Code includes specific provi sions relating to proceedings concerning the modification and termination of trusts (§§ 15400-15410). Neither party asks us to consider those provisions, and accordingly, we do not further address those provisions in resolving this appeal.9 beneficiary against a trustee of a express tr ust who did not account or report to that beneficiary did not begin to run in the absenc e of the beneficiary’s actual knowledge of some unequivocal act in violation of duties of the trustee or in repudiation of the trust. ( Id . at p. 1346; see Cal. Law Rev. Com. co m. (1996 Amendment ), 54A Part I West’s Ann. Prob. Code (2011 ed.) foll. § 16460, p. 279.) 8 The probate code also contains several sections relating to a trustee’s duty to report information and account to beneficiarie s, heirs of a deceased trustor, and other persons. (§§ 16060 et. seq.) In pertin ent part, when a revocable trust becomes
irrevocable because of the death of the trusto r, as in this case, a trustee is required to
serve a notification on each be neficiary and may serve a no tification on any other person (hereinafter referred to as the section 16061 .7 notice). (§ 16061.7, subd. (a)(1), (b)(1), (j).) The section 16061.7 notice must include a warning th at the served person “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, s ubd. (h).) Section 16061.8 provides, in pertinent part, that “[n]o person upon whom the notification by the trus tee is served . . . may bring an action to
contest the trust more than 12 0 days from the date the notifi cation by the trustee is served upon him or her, or 60 days from the day on which a copy of the te rms of the trust is mailed or personally delivered to him or he r during that 120-day period, whichever is
later.” B. Analysis Halligan first argues that the trial court erred when it held he r FAP was a claim for breach of trust against Shiloh as the successor trustee, and therefore, subject to the threeyear limitations period in sec tion 16460(a)(2). She correctly concedes “the applicable

8 Consequently, we reject Halligan’s argument that the section 16460(a)(2) limitations period could not have begun to ru n until she had some knowledge of a breach of trust by either Cecil Unruh or Shiloh. None of the cases cited by Halligan holds that only an affirmative act by a trus tee triggers the limitations pe riod in section 16460(a)(2).10 statute of limitations is determined by the su bstance or gravamen of the action rather than the form of the pleading.” ( Hatch v. Collins (1990) 225 Cal.App.3d 1104, 1110 ( Hatch ).) However, she contends the probate c ourt “did the opposite of what Hatch teaches,” by ignoring the “essentials” of her FAP and fo cusing on extraneous allegations, which suggested, in conclusory fash ion, some wrongdoing by Shiloh as the successor trustee. We conclude Halligan’s c ontention is unavailing. Here, the probate court appropriately fo und the gravamen of the FAP was that Shiloh, as successor trustee, had breached hi s fiduciary duties by failing and refusing to recognize Unruh’s handwritten note as a tr ust amendment and failing to distribute the
trust assets to the named beneficiaries in acco rdance with the trust instrument as amended by Unruh’s handwritten note. The ruling is supported by the FAP’s allegations that
Shiloh had committed the followi ng breaches: (1) promoting his individual interest as the primary beneficiary of the trust and failing to avoid conflicts of interest; (2) failing to
administer the trust as inte nded by Unruh’s handwr itten note; and (3) failing to distribute
the trust assets in accordance with the trus t as amended by Unruh’s handwritten note. The FAP’s allegations of other miscon duct by Shiloh (concealment of Unruh’s
handwritten note and failure to send a stat utory notice to Halligan) merely constitute additional allegations of breaches by the successo r trustee, and do not change the nature of Halligan’s claim. Accordingly, we conclu de, as did the probate court, that the FAP alleged only a claim for breach of trust by th e successor trustee subject to the three-year limitations period in section 16460(a)(2). We also see no merit to Halligan’s cont ention that even if the FAP contains allegations of breaches of trust by the succes sor trustee, it also seeks validation of Unruh’s handwritten note as a trust amendment, which claim should be treated as a trust contest governed by secti ons 16061.7 and 16061.8. Accordingly, she argues her January 5, 2011, petition was timely because she was never served with the section 16061.7 notice and consequently, her time to file a trust contest within the 120-day limitations period in section 160 61.8 never started to run. In support of her argument, Halligan asks us to consider Bridgeman v. Allen (2013) 219 Cal.App.4th 28811 ( Bridgeman ), and Straley v. Gamble (2013) 217 Cal.App.4th 533 ( Straley ), which were decided after the probate court’s ruling in this case. In each cited case, the appellate court considered whether a decedent’s heir, who wa s served with the s ection 16061.7 notice, had timely filed a petition within the 120-da y limitations period in section 16061.8. ( Bridgeman, at pp. 293-295; Straley, at p. 538.) However, the c ited cases and the probate code sections do not support Halligan’s suggestion that if a trustee does not serve a section 16061.7 notice, a beneficiary or an y other person may pursue a trust contest at any time . As noted, section 16061.7 concerns the trustee’s obligations to serve notification on a beneficiary, heir of a d eceased trustor, and any other person, under specified circumstances. The purpose of se ction 16061.8 is “to prohibit a person who receives notice from bringing an action to cont est the trust after a specified period of time.” (Legis. Counsel’s Dig., Assem. Bill No. 1172 (1997 Reg. Sess.) 6 Stats. 1997, Summary Dig., p. 322.) The limitations period in section 16061.8 cannot be used “as a ‘sword,’ . . . [to] be invoked affirmatively . . . as the foundation of a right.” (3 Witkin, Cal. Procedure (5th ed. 2008) Ac tions, § 439, p. 559.) In th e absence of the service of a section 16061.7 notice, the probate court, as it did in this case, appropriately considers the gravamen of the petitioner’s cl aim and then applies any app licable statute of limitations
found in other sections of the Probate Code or the Code of Civil Procedure. (§ 1000 [“Except to the extent that [the Probate Code ] provides applicable rules, the rules of practice applicable to civil actions, . . . , a pply to, and constitute the rules of practice in, proceedings under [the Probate Code]”].) 9 Nor do we see any merit to Halligan’s cha llenge to the probate court’s finding that
she discovered or should have reasonably discovered the subj ect of her claim more than three years before she filed her initial petition on January 5, 2011. In its statement of

9 In her reply brief, Halligan argues for th e first time that her time to file a petition did not begin to run while she was in possessi on of Unruh’s house. Halligan did not raise this specific issue in her FAP or at any time during the probate court proceeding. “Thus, in fairness” we do not further address the issue and express no opinion on the matter in resolving this appeal. ( Strasberg v. Odyssey Group, Inc. (1996) 51 Cal.Ap p.4th 906, 916, fn. 10.)12 decision, the probate court explained its ruli ng as follows: Halligan “knew at the time of Watson’s visit to [Unruh] on November 14, 2007, that [Unruh] had requested that Watson prepare an amendment to her Trust to leave her hous e to [Halligan]. . . . And, [Halligan] testified that she overheard the entir e conversation. Following [Unruh’s] death on December 2, 2007, [Halligan] called Watson and he told he r that the documents were non-testamentary. The Monday following [Unruh’s] death, [H alligan] met with Shiloh. He showed her the Trust and prepared a contra ct for her to sign whic h allowed her to live in the house until she died. [H alligan] felt she was fo rced to sign the contract, but did so anyway. [She] had unpleasant exchanges with Shiloh regarding the house and his request that she move from the house. . . . [Ha lligan] called Watson before Christmas 2007 and offered him $25,000 to disregard the Trus t and treat [Unruh’s] notes as a trust
amendment. Watson told her he was offended by what he interpreted to be a bribe, and in response [Halligan] threatened to sue him and hung up. There would be no reason for [Halligan] to ask Watson to treat [Unruh’s] notes as a trust amendment, or to threaten to sue him, if she did not believe that [Unruh ’s] notes left the house to her. [¶] Moreover, [Halligan] testified that she began to write up documents in prep aration for seeing a lawyer. [She] testified the documents she prepared in an ticipation of meeting with lawyers were dated December 12, 13, 26, and 28, 2007. She met w ith an attorney on December 31, 2007 and other lawyers after that. . . . Although these documents . . . were excluded by the Court based upon attorney-clie nt privilege, her testimony as to their date of preparation is not protected by the attorn ey-client privilege. [¶] . . . Based upon her
conversations with Watson and Shiloh she was on notice of her claim immediately following [Unruh’s] death. She knew or should have known of her claim.” Halligan now concedes, as supported by her own candid testimony, that by December 2007, she knew she had, or might have, a legal claim to ownership of Unruh’s
house as soon as Unruh died based on Unruh’s conversation with Watson on November 14, 2007. Nevertheless, she argues she was not aware of facts that she had a claim for breach of trust against the successor trustee, and that the earliest event that put her on inquiry notice was her receipt of the January 7, 2008, letter from Watson,13 informing her that she was no longer employed by Unruh and she had to leave the house. We disagree. To start the running of the lim itations period, Halligan did not have to be “aware of the specific ‘facts’ n ecessary to establish” a claim for breach of trust against the successor trustee. ( Jolly v. Eli Lilly & Co . (1988) 44 Cal.3d 1103, 1110-1111 ( Jolly ).) Section 16460(a)(2)’s limitations period is triggered once a be neficiary is in “receipt of information sufficient to perm it discovery of a claim” ( Noggle v. Bank of America (1999) 70 Cal.App.4th 853, 860) and puts the be neficiary “on notice to take action” ( Prakashpalan v. Engstr om, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1123). Halligan’s arguments that her December 2007 conversations with Shiloh and Watson did not put her on the ne cessary inquiry notice are not persuasive. She contends
there was no evidence that duri ng those conversations she was told that Shiloh was acting in his capacity as successor trus tee, that Watson was acting as Shiloh’s lawyer, or that the
successor trustee had breached the trust. Ho wever, she was told th at neither Shiloh nor Watson would recognize Unruh’s handwritte n note as a trust amendment, which information put her on inquiry to ascertain whether her claim to any trust assets including
Unruh’s house would be hono red by the successor trustee. And, indeed, Halligan candidly admitted at trial that her December 2007 conversations with Shiloh and Watson led her to seek the advice of independent counsel by December 31, 2007. She did not assert, and does not now assert on appeal, that she was lulled into inaction by her
December 2007 conversations w ith Shiloh and Watson. Nor does the record demonstrate that Halligan learned any new facts regarding the subject of her claim from the date of Unruh’s death on December 2, 2007, until sh e filed her initial petition on January 5, 2011. Rather, since the day of Unruh’s deat h, Halligan has continua lly demonstrated her
awareness of the facts essen tial to the subject of her cl aim as alleged in her FAP. Halligan’s contention that she could not file a petiti on until Shiloh was appointed successor trustee was properly rejected by the pr obate court. If Hal ligan was unable to ascertain the identity of the successor trustee, she could have filed a petition naming all of
the successor trustees that were listed in th e trust agreement, “n aming Doe defendants, and then taking discovery to id entify the [appropriate successor trustee(s)]. That . . . is14 the normal situation for which the fictitious name statute, Code of Civil Procedure section 474, is designed: when the plaintiff is ignoran t of the name of “a defendant,” the plaintiff must file suit against the known wrongdoe rs, and, when the Doe’s true name is discovered, the complaint may be amended acco rdingly. ( Code Civ. Proc., § 474.)” ( Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 932-933 ( Bernson ).) 10
The burden then would have fallen on each named and served successor trustee to prove that he had not breached the trust. (See Jolly, supra, 44 Cal.3d at p. 1113, fn. 12.) In sum, we conclude the probate court properly denied the FAP on the ground it was time-barred. Halligan’s time to act on he r claim began to run in December 2007 and expired in December 2010, rendering her initial petition f iled on January 5, 2011 untimely.

DISPOSITION
The order is affirmed. Defendant and respondent Da vid Hillbrand is entitled to costs on appeal.

_ ____________ ____________ Jenkins, J.

We concur:

_____________ ____________ McGuiness, P. J.

_____________ ____________

10 “Code of Civil Procedure section 583. 210, subdivision (a), provides that the summons and complaint shall be served upon a defendant w ithin three years after the complaint is filed. When th e complaint is amended to subs titute the true name of the defendant for the fictional name, the ame nded complaint ‘relates back’ to the timely original complaint and hence is not ba rred by the statute of limitations.” ( Bernson, supra , 7 Cal.4th at pp. 932-933, fn. 4.)15 Siggins, J.