Filed 6/11/21 Thomas v. Griffin-Gress CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

TOMMY THOMAS et al.,

Plaintiffs and Appellants,

v.

DIANE M. GRIFFIN-GRESS et al.,

Defendants and Respondents.

 H046738

 (Monterey County

 Super. Ct. No. 17CV004231)

Plaintiffs Tommy and Daryl Thomas (the Thomases) challenge the trial court’s 

dismissal of their action against respondents, the widow and children of their stepfather, 

Cyril Gress. In 1998, the Thomases’ mother, Elisabeth Gress, and Cyril created a 

revocable trust that would have left the couple’s property to the Thomases. Elisabeth

died in 2008, and Cyril remarried. In 2014, Cyril amended the trust as permitted by its 

terms so that all of the property would go to his children and his new wife. After Cyril

died, his son, respondent Robert Griffin-Gress, the trustee of the 2014 amended trust, sent 

a notice to the Thomases under Probate Code section 16061.71along with a copy of the 

terms of the 2014 amended trust. The Thomases requested a copy of the original 1998 

trust, which they received three months later.

More than 120 days after the notice but less than 60 days after the Thomases

received a complete copy of the original 1998 trust, the Thomases filed an action against 

Robert, his siblings, and Cyril’s widow. They alleged that the provisions of the 

1

All further statutory references are to the Probate Code.
2

2014 amended trust conflicted with Cyril’s promise to Elisabeth that the property would 

go to the Thomases. The trial court sustained a demurrer without leave to amend as to all 

of the causes of action against Robert, except for the fraud cause of action, on statute of 

limitations grounds because the action was not brought within the statutory 120-day 

period set forth in section 16061.8. The court granted judgment on the pleadings as to the 

fraud cause of action against Robert because it failed to allege any misrepresentations by 

Robert. The court also sustained a demurrer without leave to amend as to all of the 

causes of action against Robert’s siblings and Cyril’s widow on the same grounds, and it 

entered judgments of dismissal as to Robert, Robert’s siblings, and Cyril’s widow.

On appeal, the Thomases contend that section 16061.8’s 120-day statute of 

limitations does not apply because their action was not “an action to contest the trust.” 

(§ 16061.8.) Alternatively, they contend that, under section 16061.8, their action was 

timely because it was brought within 60 days after they received a copy of the original 

1998 trust. We reject their contentions and affirm the judgments.

I. BACKGROUND

In August 1998, Elisabeth and Cyril created a trust. The trust identified the 

Thomases, Elisabeth’s sons by a prior marriage, as the successor trustees. The 1998 trust 

provided that it could be “revoked, in whole or in part” or amended “[w]hile either Settlor 

is living” by a written instrument delivered to the trustee. The trust expressly provided 

that it would continue to be revocable after the death of either settlor. The surviving 

settlor was also granted the power to appoint the trust assets by will to anyone. If that did 

not happen, the assets were to be distributed as set forth in the trust, which provided that 

the Thomases would receive those assets if they were living.

2

 Elisabeth’s August 1998

will expressly stated that it was intended to dispose of only such assets as were not held 

2

The 1998 trust also provided that any beneficiary or heir who challenged the trust 

would be disinherited and would forfeit any interest under the trust.
3

by the trust. She left those assets to Cyril in trust under the 1998 trust. Elisabeth died in 

2008.

In October 2014, after Cyril had remarried, he executed an amended trust 

declaration. The 2014 amended trust struck all of the provisions of the 1998 trust and 

substituted new provisions expressly disinheriting the Thomases, leaving the trust assets 

to Cyril’s new wife and his children, and identifying his son Robert as the successor 

trustee.

3

After Cyril’s death, Robert sent a notification to the Thomases under 

section 16061.7. This notification, which was served on the Thomases on June 14, 2017

and was accompanied by a copy of the 2014 amended trust, identified Robert as the 

trustee of the 2014 amended trust and informed the Thomases that they were “entitled to 

receive from the trustee a true and complete copy of the terms of the trust by requesting 

the same” from the trustee. It also stated, as required by section 16061.7: “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 OF WHICH A COPY OF THE TERMS OF 

THE TRUST IS MAILED OR PERSONALLY DELIVERED TO YOU IN RESPONSE 

TO YOUR REQUEST DURING THE 120 DAY PERIOD, WHICHEVER IS LATER.” 

A form letter that could be used to request a copy of the terms of the trust was attached to 

the notification.

The Thomases filed their original petition and complaint against Robert, 

individually and as trustee, his siblings, and Cyril’s widow on November 17, 2017.

4

3

The 2014 amended trust contained a “No-Contest Clause” under which any 

“beneficiary” contesting the trust without probable cause would receive nothing.

4

The attorney who had drafted the two trusts was also named as a defendant, and 

a cause of action for professional negligence was alleged against him. The record 

contains no indication that he filed a demurrer, and he is not a party to this appeal.
4

They alleged that when Elisabeth and Cyril created the 1998 trust, they agreed that the 

Thomases would receive the trust property after both of them died. After Elisabeth died, 

Cyril revoked the trust and created a new trust under which the trust property would 

instead go his new wife and his children. The original petition and complaint pleaded, 

among other things, causes of action for breach of contract, fraud, interference, and 

declaratory relief.

The Thomases filed a second amended petition and complaint in February 2018. 

The petition portion of this pleading alleged a cause of action seeking a determination 

that the trust amendment was invalid. The complaint portion alleged causes of action for 

breach of contract, fraud, promissory estoppel, conversion, interference, and declaratory 

relief. The Thomases alleged that the June 2017 notification was defective and that it had

erroneously included only the 2014 amended trust but not the 1998 original trust. They 

asserted that they were unable to “assess their rights” without a copy of the 1998 trust. 

The Thomases alleged that they requested a copy of the 1998 trust from Robert, but they 

did not receive a complete copy of the 1998 trust until September 26, 2017. They alleged 

that, due to this delay, they had until November 25, 2017 to timely file their action.

Robert filed a demurrer to the second amended petition and complaint. He 

asserted that the Thomases’ action was barred by the statute of limitations set forth in 

sections 16061.7 and 16061.8 because the action had not been filed within the 120-day 

limitations period. The Thomases responded by claiming that their action was timely 

because it had been filed within 60 days after they received a copy of the 1998 trust and 

that section 16061.8 did not apply because their action was not a trust contest but “a 

challenge to whether certain assets [we]re included” in the 2014 amended trust. They 

claimed that their action was based on an allegation that Cyril had “manipulated” assets. 

The trial court sustained the demurrer on statute of limitations grounds without leave to 

amend as to two causes of action and with leave to amend as to seven causes of action, 

and it overruled the demurrer as to the fraud cause of action.
5

The Thomases filed a third amended petition and complaint. They alleged that 

they had relied on the statement in the notice that they would have 60 days after receiving 

the terms of the trust to file their action. The third amended petition and complaint

alleged causes of action for conversion, breach of contract, fraud, promissory estoppel, 

interference, breach of fiduciary duty, and declaratory relief. Two of these causes of 

action were asserted for the first time in this pleading.

5

 Robert again demurred.

In November 2018, the court sustained Robert’s demurrer without leave to amend 

as to all causes of action except for the fraud cause of action. Robert then sought 

judgment on the pleadings on the ground that the fraud allegations did not allege that he 

had made any misrepresentations. The Thomases sought reconsideration of the court’s 

order sustaining the demurrer. The trial court denied reconsideration, granted the motion 

for judgment on the pleadings, and entered a judgment of dismissal as to Robert. 

Robert’s siblings and Cyril’s widow also demurred. Their demurrer was sustained 

without leave to amend, and the court entered a judgment of dismissal as to them. The 

Thomases timely filed a notice of appeal challenging both judgments.

II. DISCUSSION

A. Standard of Review

“ ‘We treat the demurrer as admitting all material facts properly pleaded, but not 

contentions, deductions or conclusions of fact or law. [Citation.] We also consider 

matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a 

reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] 

When a demurrer is sustained, we determine whether the complaint states facts sufficient 

to constitute a cause of action. [Citation.] And when it is sustained without leave to 

amend, we decide whether there is a reasonable possibility that the defect can be cured by 

5

In May 2018, the Thomases filed creditor’s claims against Cyril’s estate based on 

the original 1998 trust. The creditor’s claims and Cyril’s estate are not at issue in this 

appeal.
6

amendment: if it can be, the trial court has abused its discretion and we reverse; if not, 

there has been no abuse of discretion and we affirm. [Citations.] The burden of proving 

such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 

Cal.3d 311, 318.) A motion for judgment on the pleadings is subject to the same standard 

of review. (Ellerbee v. County of Los Angeles (2010) 187 Cal.App.4th 1206, 1213-1214.)

B. Sections 16061.8 and 16060.5

“No person upon whom the notification by the trustee is served pursuant to this 

chapter, whether the notice is served on him or her within or after the time period set 

forth in subdivision (f) of Section 16061.7, 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 date on which a copy of the terms of the trust is delivered pursuant to 

Section 1215 to him or her during that 120-day period, whichever is later.” (§ 16061.8, 

italics added.)

“As used in this article, ‘terms of the trust’ means the written trust instrument of 

an irrevocable trust or those provisions of a written trust instrument in effect at the 

settlor’s death that describe or affect that portion of a trust that has become irrevocable at 

the death of the settlor. In addition, ‘terms of the trust’ includes, but is not limited to, 

signatures, amendments, disclaimers, and any directions or instructions to the trustee that 

affect the disposition of the trust. ‘Terms of the trust’ does not include documents which 

were intended to affect disposition only while the trust was revocable. If a trust has been 

completely restated, ‘terms of the trust’ does not include trust instruments or amendments 

which are superseded by the last restatement before the settlor’s death, but it does include 

amendments executed after the restatement. ‘Terms of the trust’ also includes any 

document irrevocably exercising a power of appointment over the trust or over any 

portion of the trust which has become irrevocable.” (§ 16060.5.)
7

C. The Thomases’ Action Was an Action to Contest the Trust

The Thomases contend that their action was not subject to section 16061.8’s 

limitations period because their action was not an “action to contest the trust” but an 

action “to enforce a promise by a decedent.”

The Thomases fail to garner any legal support for their claim that their allegations 

did not contest the trust. Instead, they expend considerable effort arguing the merits of 

their causes of action, which are not at issue in this appeal. The only question is whether 

their causes of action were untimely under section 16061.8.

The Thomases cite a number of inapposite cases. The issue in Estate of Mullins 

(1988) 206 Cal.App.3d 924 was whether the probate court had jurisdiction over an action 

to enforce an oral agreement to make a testamentary disposition or whether such an 

action should have been brought as a civil action. (Id. at pp. 927-928.) The holding was 

that the probate court lacked jurisdiction over that action because the action did not 

concern the internal affairs of the trust. (Id. at p. 931.) This case does not involve the 

scope of a probate court’s jurisdiction.

Cooney v. Glynn (1910) 157 Cal. 583 was a civil action to enforce a promise to 

hold property in trust. The court, which reversed a nonsuit, did not consider whether the 

action was one contesting a trust, and the statute of limitations was not at issue. (Id. at 

pp. 587-590.) Aho v. Kusnert (1939) 12 Cal.2d 687 did not involve a trust at all. Yeh v. 

Tai (2017) 18 Cal.App.5th 953 was an action under a Family Code provision that

contained its own special statute of limitations for breach of fiduciary duty. (Id. at 

p. 957.) That provision is not at issue in this case.

The Thomases claim that Day v. Greene (1963) 59 Cal.2d 404 (Day) is “on all 

fours” with this case. It is not. The statute of limitations issue in Day did not concern 

section 16061.8, which was not enacted until decades after the Day decision. In Day, the 

court held that the action to impose a constructive trust on part of the plaintiff’s 

stepmother’s estate was subject to the limitations period for fraud rather than the 
8

limitations period for breach of contract. (Day, supra, at p. 411.) The case did not 

involve an express trust, and the Day court said nothing about what would constitute an 

action contesting a trust. (Id. at pp. 408-409.)

Redke v. Silvertrust (1971) 6 Cal.3d 94 is also not on point as it did not concern 

any statute of limitations or whether an action was an action contesting a trust. Although 

Ludwicki v. Guerin (1961) 57 Cal.2d 127 concerned a statute of limitations, it was not the 

limitations period at issue here, and the court said nothing about what would constitute an 

action contesting a trust.

The Thomases’ reliance on cases interpreting no-contest clauses is misplaced, as 

that is another issue that is not before us in this case.6 Giammarrusco v. Simon (2009) 

171 Cal.App.4th 1586 concerned a petition for declaratory relief seeking a finding that it 

would not be a contest under a trust’s no-contest clause to make a contention that an 

acknowledged instrument satisfied ambiguous language in the trust. (Id. at p. 1593.) The 

issue turned on whether that specific contention fell within the particular language of the 

trust’s no-contest clause. (Id. at p. 1601.) Estate of Watson (1986) 177 Cal.App.3d 569

similarly concerned whether an action to enforce an oral promise came within a 

no-contest clause in a will, and the court recognized that such an issue had to be resolved 

on a “case-by-case” basis and depended on the particular language of the no-contest 

clause. (Id. at p. 572; see also Burch v. George (1994) 7 Cal.4th 246, 261 [rejecting 

claim that “any proceeding based upon a claim of right independent of a will or trust 

instrument is never a contest for purposes of the no contest law”].) Estate of Miller 

6

Although “contest” is defined in section 21310 for purposes of a part of the 

Probate Code concerning “no contest clause[s],” that definition does not apply to section 

16061.8. Section 21310 defines a “contest” “[a]s used in this part,” which is Part 3 of 

Division 7 of the Probate Code. Section 16061.8 appears in Part 4 of Division 9 of the 

Probate Code.
9

(1963) 212 Cal.App.2d 284 also concerned a no-contest clause and did not concern a

statute of limitations.

The Thomases insist that an action “to enforce a settlor’s promise to bestow 

particular property upon someone does not amount to a trust contest even though the 

settlor put that asset into the trust before dying.” They cite no support for this 

proposition. They simply claim that what matters is that the “primary right” upon which 

they based their action was Cyril’s breach of promise, which they contend was not linked 

to the trust. However, the underlying basis for all of the Thomases’ causes of action, 

despite multiple opportunities to amend them, was their allegation that Cyril’s execution 

of the 2014 amended trust was the breach of promise. We reject the Thomases’ claim 

that their causes of action did not contest the trust. Consequently, section 16061.8’s 

120-day limitations period applied to all of the Thomases’ causes of action against 

Robert, his siblings, and Cyril’s widow.

D. The Thomases’ Action was Untimely

The Thomases argue that their action was timely under section 16061.8 because 

they filed it within 60 days after they received a complete copy of the terms of the 

1998 trust.

Section 16060.5 defines “ ‘terms of the trust’ ” for purposes of section 16061.8,

and it provides that “[i]f a trust has been completely restated, ‘terms of the trust’ does not 

include trust instruments or amendments which are superseded by the last restatement 

before the settlor’s death . . . .” (§ 16060.5, italics added.)

Although the 1998 trust was superseded by the 2014 amended trust, which was the 

last restatement before Cyril’s death, the Thomases contend that “the settlor’s death” in 

section 16060.5 does not refer to Cyril’s death but to Elisabeth’s death and therefore 

section 16061.8 required the trustee to provide them with a copy of the 1998 trust, which 
10

was the trust in effect at the time of Elisabeth’s death.

7

 They cite nothing to support this 

contention but argue that they could not evaluate the validity of the 2014 amended trust 

without reviewing the 1998 trust.

The Thomases’ argument is inconsistent with the express language of 

section 16060.5, which identifies the “terms of the trust” as used in section 16061.8 as the 

terms that became “irrevocable at the death of the settlor.” No terms of the 1998 trust 

became irrevocable at the time of Elisabeth’s death, as the 1998 trust provided that Cyril 

could revoke or amend that trust after Elisabeth’s death. The only trust terms that 

became irrevocable at anyone’s death were the terms of the 2014 amended trust, which 

became irrevocable at the time of Cyril’s death. Hence, the “terms of the trust” under 

section 16061.8 were the terms of the 2014 amended trust. As the 2014 amended trust 

was sent to the Thomases with the notice, the 60-day period had no application here.

The Thomases’ fallback argument is that equitable estoppel applies. They assert 

that what they received in June 2017 was “a cover letter indicating an enclosure was the 

1998 trust document (which was not enclosed), a Notification which specifically 

identified the 1998 trust document and offered to provide a copy of the trust documents 

upon request (3CT p. 355) and a 2014 trust document (3CT p. 285-86).” They claim that 

“the reference to enclosure of the 1998 document, which was not enclosed, would have 

signaled that one could ask that the missing document be provided.”

Page 355 of the clerk’s transcript is the notice itself, signed by Robert, which 

stated that Cyril “executed THE GRESS FAMILY TRUST, in his capacity as settlor and 

trustee on August 10, 1998, and restated in its entirety on October 24, 2014.” The notice

did not offer to provide a copy of the 1998 trust. Instead, it stated: “If you would like a 

copy of the terms of THE GRESS FAMILY TRUST, as amended and restated, kindly 

7

They also suggest without argument that the 2014 amended trust might have 

been “invalid for some reason.” We disregard this unsupported suggestion.
11

mail the request form attached hereto . . . .” (Italics added.) The attached request form 

stated: “I respectfully request a true and complete copy of the terms of THE GRESS 

FAMILY TRUST, as amended and restated, as defined in Probate Code §16060.5 be 

mailed to me . . . .” (Italics added.) Thus, neither the notice nor the request form offered 

to make the 1998 trust available to the Thomases.

The Thomases’ only remaining allegations on this point were that the notice and 

request form were accompanied by a “cover letter” (which was not attached to their 

pleadings) that inaccurately reflected that the 1998 trust was enclosed, thereby causing

them to believe that they were entitled to a copy of the 1998 trust before the 60-day 

period would commence. Pages 285 and 286 of the clerk’s transcript are two pages of 

the Thomases’ third amended petition and complaint. On those pages, the Thomases 

alleged that they “received a letter from defendant Gregory M. Chilton” that accompanied 

the notice and the 2014 amended trust and that this letter inaccurately “indicated it 

enclosed the 1998 Trust.” (Italics added.) The Thomases alleged that they submitted a 

request, but it took over three months for them to acquire a complete copy of the 1998 

trust.

“ ‘ “[A] party will be estopped from asserting the statute of limitations as a 

defense to an admittedly untimely action because his conduct has induced another into 

forbearing suit within the applicable limitations period. [Equitable estoppel] is wholly 

independent of the limitations period itself and takes its life . . . from the equitable 

principle that no man [may] profit from his own wrongdoing in a court of justice.” ’ ” 

(Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 383.) “The basic principles of equitable

estoppel are well established and easily stated. ‘Whenever a party has, by his own 

statement or conduct, intentionally and deliberately led another to believe a particular 

thing true and to act upon such belief, he is not, in any litigation arising out of such 

statement or conduct, permitted to contradict it.’ [Citation.] ‘ “Generally speaking, four 

elements must be present in order to apply the doctrine of equitable estoppel: (1) the 
12

party to be estopped must be apprised of the facts; (2) he must intend that his conduct 

shall be acted upon, or must so act that the party asserting the estoppel had a right to 

believe it was so intended; (3) the other party must be ignorant of the true state of facts; 

and (4) he must rely upon the conduct to his injury.” ’ ” (Honeywell v. Workers’ Comp. 

Appeals Bd. (2005) 35 Cal.4th 24, 37.)

The Thomases’ allegations in their third amended petition and complaint were 

wholly insufficient to support estopping Robert, his siblings, or Cyril’s widow from 

asserting the statute of limitations. The key element was missing. The Thomases did not 

allege any conduct by Robert, his siblings, or Cyril’s widow or allege that any of them 

“intend[ed] that [their] conduct shall be acted upon” or “so act[ed] that the party asserting 

the estoppel had a right to believe [that conduct] was so intended.” The only conduct the 

Thomases alleged as a basis for an estoppel was the conduct of Chilton, not the conduct 

of Robert, his siblings, or Cyril’s widow.8 The Thomases did not allege that Robert, his 

siblings, or Cyril’s widow intended for Chilton’s conduct to influence the Thomases’ 

actions in connection with the limitations period. Since the Thomases did not allege a 

basis for an estoppel, the statute of limitations barred their action against Robert, his 

siblings, and Cyril’s widow.

III. DISPOSITION

The judgments are affirmed.

8

Chilton was the attorney who represented both Cyril and Elisabeth and drafted 

both the 1998 trust and the 2014 amended trust.
_______________________________

ELIA, ACTING P.J.

WE CONCUR:

_____________________________

BAMATTRE-MANOUKIAN, J.

_____________________________

DANNER, J.

Thomas et al. v. Griffin-Gress et al.

H046738