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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 for 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 references 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 designated beneficiaries, Unruh’s house in San Francisco would 

devise to her nephew by marriage, William 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 estate would be distributed to six 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 death, the trust “would be irrevocable” and not 

subject to amendment. At the death of Unruh, 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 administration 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 several years. In 2002, Halligan moved into 

Unruh’s house at the latter’s request. Halligan acted as Unruh’s companion and Unruh 

paid Halligan a stipend of $1,200 per month that was later increased to $1,300. 

 On November 14, 2007, Unruh met with her attorney Edward Watson (Watson) at 

her home. Unruh spoke with Watson about the changes she wanted made to the trust 

agreement. Unruh wanted her 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 Watson, Unruh had prepared a handwritten 

note indicating the changes she wanted made to her trust. The handwritten note initially 

stated, in pertinent part, “My house to Marjory Halligan if she is still with me,” “2nd 

choice William James ‘Shiloh’ Unruh,” “$25,000 to Betty Champaign,” $25,000 to 

William James ‘Shiloh’ Unruh . . . [when he gets 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 for Shiloh and changed it to $50,000. At 
3

Watson’s request, Unruh gave the handwritten note to him. He asked for the handwritten 

note because it had all the information he would need to draft a formal trust amendment 

document. Watson did not consider 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 modification. According to Watson, Unruh 

knew and understood that Watson was going 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, Halligan called Watson to determine “what [her] protocol 

was” for the disposition of Unruh’s estate. Halligan’s call was prompted by the fact that 

on November 14, 2007, from an adjoining room, she had overhead the entire 

conversation between Watson and Unruh regarding Unruh’s wish to change her trust. 

Watson said Halligan needed to contact Shiloh and that she should work things out with 

Shiloh. 2 Halligan “freaked out” because she believed she was to contact Cecil Unruh if 

anything happened to Unruh. When Halligan asked Watson about the “notes” 3 he had 

taken from Unruh on November 14, 2007, Watson said he would have to check his file 

and get back to her. Halligan then called Shiloh and told him that 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 and explain the concept of a beneficiary. At 

their meeting, Shiloh gave Halligan a copy of the trust agreement. He offered to let 

Halligan stay in the house until her death, and drafted a contract to that effect on the back 

 

2

 After the death of Unruh, Cecil Unruh declined appointment as successor trustee, 

and the court appointed Shiloh as successor 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 admitted into evidence after being identified 

as Unruh’s handwritten note given to Watson on November 14, 2007. 
4

of the trust agreement. Halligan signed the contract because Shiloh “threatened” her.4

 

Halligan again spoke with Watson 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 Watson and asked him about his “fee,” and he replied, it was 

$5,000. She did not know how much he would 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 Shiloh. 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 and then hung up. 

 To prepare for meeting counsel and to “preserve her testimony,” Halligan drafted 

several multi-paged documents, dated December 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 December 31, 2007, and later met with other counsel. 

 

4

 At the trial, Halligan testified that she kept the signed contract and put it in a hope 

chest in Unruh’s bedroom. However, when Halligan went to retrieve the document a few 

days later, she found that someone had “rifled” through the hope chest and the document 

was missing. In lieu of the missing document, 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 Unruh’s handwritten note, which was ultimately 

seen by Halligan in March 2011. On instruction of Shiloh, Watson had refused to earlier 

produce the note because it was his understanding 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 signed by Unruh. However, 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, represented by other counsel, filed an unlawful 

detainer action against Halligan and she was evicted 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 petition in the probate court, pursuant to 

section 17200, seeking 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.” After the court sustained, in part, a 

demurrer filed by Shiloh, as successor trustee, 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 and 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 probate court; promoting his individual interest 

as the primary beneficiary of the original trust; putting his own interest ahead of Halligan 

when there was a conflict; and failing to administer 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 Petitioner seeks is an order confirming that the 

handwritten trust amendment[ ] [is] valid and administration of the Trust in accordance 

with the amendment[ ].” 

 In addressing whether her claim was barred by any statute of limitations, Halligan 

alleged she could not have prosecuted this claim for the proper administration of the trust 
6

“until she was made fully aware of the contents of the trust instrument, including 

amendments.” Although aware of Unruh’s true wishes, Halligan did not know, and could 

not reasonably be expected to know, that the handwritten note given to Watson 

constituted a trust amendment and modification. She further alleged that regardless of 

any fraud that may or may not have taken place, the trust administration was subject to 

continued probate court jurisdiction and therefore, it was irrelevant when she knew or 

should have known the contents of Unruh’s handwritten note. According to Halligan, 

“[w]hat matters is that the Trust 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 benefit of [herself] and the other named 

beneficiaries.” She also alleged that “as the 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 limitations period on a claim to contest the trust had not begun 

to run. 

 David Hillbrand, as special administrator of Shiloh’s estate, 6 filed an objection, 

arguing, in pertinent part, that the FAP was barred by the three-year limitations period for 

a claim for breach of trust by a trustee in section 16460(a)(2). According to Hillbrand, 

Halligan “discovered, or reasonably should have discovered, that the document that she 

claims to be a trust modification was a trust 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 later than December 3, 2010.” 

 

6

 Shortly after the court granted his demurrer to Halligan’s initial petition and before 

the filing of the first amended petition, Shiloh died on September 1, 2011. David 

Hillbrand, as special administrator of Shiloh’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 private 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 Francisco 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 Dolch, as successor trustee, has possession of 

the net proceeds of the sale. Dolch did not file 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 Halligan and Watson. The court also admitted into evidence 

several documents including the trust agreement and Unruh’s handwritten note given to 

Watson on November 14, 2007. After considering Halligan’s objections to its proposed 

statement of decision, the probate court issued a statement of decision denying the FAP 

on the ground it was barred by the three-year limitations period in section 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 the facts giving rise to the 

subject of her claim in December 2007, more than 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 successor trustee and, alternatively, there was no 

applicable statute of limitations because the FAP only sought to have Unruh’s 

handwritten note declared a trust amendment and did not seek relief for any alleged 

misconduct by Shiloh as successor trustee. The probate court filed an order denying the 

FAP, and Halligan’s timely appeal ensued. 

DISCUSSION 

A. Applicable Law 

“The probate court has exclusive jurisdiction over proceedings concerning the 

internal affairs of the trust. (§ 17000(a).) Such proceedings include ‘[d]etermining 

questions of construction of a trust instrument’; ‘[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 directing the modification or termination 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 internal 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 the 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 instrument (§ 16000); the duty of 

loyalty (§ 16002); the duty to deal impartially with the beneficiaries (§ 16003); the duty 

to avoid conflicts of interest (§ 16004); and the duty to report information 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 trustee to perform the trustee’s duties;” “[t]o 

enjoin the trustee from committing a breach of trust;” “[t]o compel the trustee to redress a 

breach of trust by payment of money or otherwise;” “to set aside 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 the common law.” (§ 16420, subd. (a)(1), (2), 

(3), (6), (8), (b).) Section 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 within three years after 

the beneficiary discovered, or reasonably should 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 provisions 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 trust who did not account or report to that 

beneficiary did not begin to run in the absence 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. com. (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 beneficiaries, heirs of a deceased trustor, and other 

persons. (§§ 16060 et. seq.) In pertinent part, when a revocable trust becomes 

irrevocable because of the death of the trustor, as in this case, a trustee is required to 

serve a notification on each beneficiary and may serve a notification 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 that 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, subd. (h).) Section 16061.8 provides, in pertinent part, that “[n]o 

person upon whom the notification by the trustee is served . . . 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.” 

B. Analysis 

 Halligan first argues that the trial court erred when it held her FAP was a claim for 

breach of trust against Shiloh as the successor trustee, and therefore, subject to the threeyear limitations period in section 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 run 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 trustee triggers the limitations period in section 16460(a)(2). 
10

statute of limitations is determined by the substance 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 court “did the opposite of what Hatch teaches,” by 

ignoring the “essentials” of her FAP and focusing on extraneous allegations, which 

suggested, in conclusory fashion, some wrongdoing by Shiloh as the successor trustee. 

We conclude Halligan’s contention is unavailing. 

 Here, the probate court appropriately found the gravamen of the FAP was that 

Shiloh, as successor trustee, had breached his fiduciary duties by failing and refusing to 

recognize Unruh’s handwritten note as a trust amendment and failing to distribute the 

trust assets to the named beneficiaries in accordance 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 following 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 intended by Unruh’s handwritten note; and (3) failing to distribute 

the trust assets in accordance with the trust as amended by Unruh’s handwritten note. 

The FAP’s allegations of other misconduct by Shiloh (concealment of Unruh’s 

handwritten note and failure to send a statutory notice to Halligan) merely constitute 

additional allegations of breaches by the successor trustee, and do not change the nature 

of Halligan’s claim. Accordingly, we conclude, as did the probate court, that the FAP 

alleged only a claim for breach of trust by the successor trustee subject to the three-year 

limitations period in section 16460(a)(2). 

 We also see no merit to Halligan’s contention that even if the FAP contains 

allegations of breaches of trust by the successor 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 sections 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 16061.8 never started to run. In support of her argument, 

Halligan asks us to consider Bridgeman v. Allen (2013) 219 Cal.App.4th 288 
11

(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 was served with the section 16061.7 notice, 

had timely filed a petition within the 120-day limitations period in section 16061.8. 

(Bridgeman, at pp. 293-295; Straley, at p. 538.) However, the cited 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 any 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 deceased trustor, and any other person, under 

specified circumstances. The purpose of section 16061.8 is “to prohibit a person who 

receives notice from bringing an action to contest 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) Actions, § 439, p. 559.) In the 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 claim and then applies any applicable 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, . . . , apply to, and constitute the rules of practice in, 

proceedings under [the Probate Code]”].) 9 

 Nor do we see any merit to Halligan’s challenge to the probate court’s finding that 

she discovered or should have reasonably discovered the subject 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 the first time that her time to file a petition 

did not begin to run while she was in possession 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.App.4th 906, 916, 

fn. 10.) 
12

decision, the probate court explained its ruling 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 house to [Halligan]. . . . And, 

[Halligan] testified that she overheard the entire conversation. Following [Unruh’s] death 

on December 2, 2007, [Halligan] called Watson and he told her that the documents were 

non-testamentary. The Monday following [Unruh’s] death, [Halligan] met with Shiloh. 

He showed her the Trust and prepared a contract for her to sign which allowed her to live 

in the house until she died. [Halligan] felt she was forced 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. . . . [Halligan] called Watson before Christmas 2007 and 

offered him $25,000 to disregard the Trust 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 preparation for seeing a 

lawyer. [She] testified the documents she prepared in anticipation of meeting with 

lawyers were dated December 12, 13, 26, and 28, 2007. She met with an attorney on 

December 31, 2007 and other lawyers after that. . . . Although these documents . . . were 

excluded by the Court based upon attorney-client privilege, her testimony as to their date 

of preparation is not protected by the attorney-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 limitations period, Halligan did not have to be 

“aware of the specific ‘facts’ necessary 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 beneficiary is in “receipt of 

information sufficient to permit discovery of a claim” (Noggle v. Bank of America (1999) 

70 Cal.App.4th 853, 860) and puts the beneficiary “on notice to take action” 

(Prakashpalan v. Engstrom, 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 necessary inquiry notice are not persuasive. She contends 

there was no evidence that during those conversations she was told that Shiloh was acting 

in his capacity as successor trustee, that Watson was acting as Shiloh’s lawyer, or that the 

successor trustee had breached the trust. However, she was told that neither Shiloh nor 

Watson would recognize Unruh’s handwritten 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 honored 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 with 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 she filed her initial petition on January 5, 

2011. Rather, since the day of Unruh’s death, Halligan has continually demonstrated her 

awareness of the facts essential to the subject of her claim as alleged in her FAP. 

 Halligan’s contention that she could not file a petition until Shiloh was appointed 

successor trustee was properly rejected by the probate court. If Halligan 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 the trust agreement, “naming Doe defendants, 

and then taking discovery to identify the [appropriate successor trustee(s)]. That . . . is 
14

the normal situation for which the fictitious name statute, Code of Civil Procedure section 

474, is designed: when the plaintiff is ignorant of the name of “a defendant,” the plaintiff 

must file suit against the known wrongdoers, and, when the Doe’s true name is 

discovered, the complaint may be amended accordingly. ( 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 her claim began to run in December 2007 and 

expired in December 2010, rendering her initial petition filed on January 5, 2011 

untimely. 

DISPOSITION 

 The order is affirmed. Defendant and respondent David 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 within three years after the 

complaint is filed. When the complaint is amended to substitute the true name of the 

defendant for the fictional name, the amended complaint ‘relates back’ to the timely 

original complaint and hence is not barred by the statute of limitations.” (Bernson, supra, 

7 Cal.4th at pp. 932-933, fn. 4.) 
15

Siggins, J.