Filed 12/28/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

ERIC HAMILTON et al.,

Plaintiffs and Appellants,

v.

LADONNA GREEN,

Defendant and Respondent.

 B323621

 (Los Angeles County

 Super. Ct. No. 21STCV28166)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Gus T. May, Judge. Affirmed.

Law Offices of L’Tanya M. Butler and L’Tanya M. Butler for Plaintiffs 

and Appellants.

No appearance for Defendant and Respondent.
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INTRODUCTION

Would-be beneficiaries of a trust failed to bring a challenge within 

Probate Code section 16061.8’s 120-day statute of limitations. Here we 

decide they may not later bring a civil complaint alleging forgery of a 

purported trust amendment.

Plaintiffs filed a lawsuit challenging the validity of a trust amendment 

that removed them as beneficiaries of their late grandmother’s trust. 

Plaintiffs alleged defendant, their aunt, forged the trust amendment to 

eliminate their interest in the trust. Defendant filed a demurrer to plaintiffs’ 

complaint on the ground that all of plaintiffs’ causes of action were timebarred (Prob. Code, § 16061.8.) The trial court agreed and sustained the 

demurrer without leave to amend. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Our summary of facts is limited to those pled in the complaint, the 

attached exhibits, and matters that have been judicially noticed. (Barnett v. 

Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 504–505; Evans v. City of 

Berkeley (2006) 38 Cal.4th 1, 6.) 

A. The Parties

Lena Grace Hamilton (Lena) was the settlor of the Lena Grace 

Hamilton Trust, dated March 11, 1991 (trust). Lena had two children,

defendant LaDonna Green (LaDonna) and Eric Duane Hamilton (Eric Sr.). 

Eric Sr. also had two children, plaintiffs Dominic Hamilton (Dominic) and 

Eric Hamilton (Eric Jr.).
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B. The Original Trust and the Amendment

The trust named LaDonna as the “initial trustee.” The trust provided 

that upon Lena’s death, the trust estate would be distributed to LaDonna and 

Eric Sr. The trust also stated that at the time of Lena’s death if either 

LaDonna or Eric Sr. was “not living, or [was] later deceased, distribution 

shall be made to that person’s descendants, if then living.” A handwritten 

amendment (trust amendment) changed that term to read, “if one beneficiary 

is alive all [Lena’s] properties shall go to the survivor.” The trust amendment 

was dated September 26, 2002 and bore Lena’s purported signature. 

Eric Sr. died in 2004, predeceasing Lena. Lena died in 2019. After 

Lena’s death, LaDonna informed Dominic and Eric Jr. that she was the sole 

beneficiary of the trust as Eric Sr. had predeceased Lena. LaDonna provided 

Dominic and Eric Jr. with excerpts of the trust to substantiate her argument 

that she was the sole beneficiary. Dominic and Eric Jr. asked LaDonna for a

copy of the trust instrument. LaDonna refused the request. 

C. The Probate Proceedings

On January 13, 2020, Dominic and Eric Jr. filed a probate petition 

seeking LaDonna’s removal as trustee, based in part on her failure to provide 

Dominic and Eric Jr. with a complete copy of the trust instrument. Dominic 

and Eric Jr. requested a court order requiring LaDonna to submit the 

original trust instrument along with any amendments. 

On April 17, 2020, LaDonna served Dominic and Eric Jr. with a 

“notification by trustee” (notification), pursuant to Probate Code section

16061.7.

1 As required by statute, the notification informed Dominic and Eric 

Jr. in bold, capitalized letters, “you may not bring an action to contest the 

1 All unspecified statutory references are to the Probate Code.
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trust more than 120 days from the date the notification by trustee was served 

upon you.” LaDonna also attached a copy of the trust and the trust

amendment. 

On March 10, 2021, Dominic and Eric Jr. sought leave to file a first 

amended probate petition. Dominic and Eric Jr. moved to amend their 

petition to challenge the validity of the trust amendment, asserting it was a 

forgery. Dominic and Eric Jr. also sought to allege the invalid trust

amendment could not eliminate their interests in the trust. The court denied 

the motion. 

D. The Civil Complaint and Demurrer Proceedings

On July 29, 2021, Dominic and Eric Jr. filed a civil complaint against 

LaDonna. The complaint alleged causes of action for (1) interference with 

inheritance rights; (2) interference with prospective economic advantage; 

(3) interference with contract; (4) conversion; (5) quiet title; (6) breach of 

fiduciary duty; and (7) an accounting. 

The complaint alleged the pre-amendment trust terms entitled Dominic 

and Eric Jr. to succeed to their father’s trust interest. Dominic and Eric Jr.

suspected the trust amendment was inauthentic and learned from 

“handwriting analysis” that the amendment was a forgery. Dominic and Eric 

Jr. alleged LaDonna “created the false document for the purpose of stealing 

their inheritance.” Dominic and Eric Jr. incorporated the above general 

allegations into each cause of action in the complaint. Each cause of action 

also specifically alleged the invalidity of the trust amendment as the basis for 

relief. 

On November 29, 2021, LaDonna filed a demurrer to Dominic and Eric 

Jr.’s complaint on the ground that each cause of action was time-barred. 
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LaDonna contended the complaint was “an action to contest the trust” within 

the meaning of section 16061.8 and that the section’s 120-day statute of 

limitations therefore applied. According to LaDonna, the complaint had the 

“practical effect” of being “an action to contest the trust” because (1) the 

complaint placed the validity of the trust amendment at issue and (2) it was

impossible for Dominic and Eric Jr. to recover on their claims unless the 

court determined that the trust amendment was invalid.2 Dominic and Eric 

Jr. opposed, arguing the complaint did not meet the definition of a “contest” 

and therefore section 16061.8’s statute of limitations did not apply. 

The court sustained the demurrer without leave to amend. The court 

found the 120-day limitations period applied, precluding each cause of action 

as a matter of law. The court reasoned “[a]lthough this is a civil action and 

there are different causes of action than was filed in the probate matter . . . 

they still constitute a[n] ‘action to contest the trust’ since all of the 

allegations are really centered on the invalidity of the trust amendment due 

to forgery.”

Dominic and Eric Jr. timely appealed.

DISCUSSION

A. Appealability 

As a threshold matter, Dominic and Eric Jr. appeal from an order 

sustaining LaDonna’s demurrer without leave to amend. The general rule is 

2 LaDonna supported her demurrer with a request for judicial notice of, 

among other documents, the April 17, 2020 notification and proof of service, 

filed in the probate proceedings. It does not appear from the record that the 

court expressly granted LaDonna’s request for judicial notice. However, the 

court’s reference at the demurrer hearing to the notification and prior 

probate proceedings imply the request was granted. (See Aghaian v. 

Minassian (2020) 59 Cal.App.5th 447, 454, fn. 6.)
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that “[a]n order sustaining a demurrer without leave to amend is not 

appealable, and an appeal is proper only after entry of a dismissal on such an 

order. [Citations.]” (Sisemore v. Master Financial, Inc. (2007) 151 

Cal.App.4th 1386, 1396.) However, “when the trial court has sustained a 

demurrer [without leave to amend] to all of the complaint’s causes of action, 

appellate courts may deem the order to incorporate a judgment of dismissal, 

since all that is left to make the order appealable is the formality of the entry 

of a dismissal order or judgment. [Citations.]” (Ibid.; see also Bullock v. City 

of Antioch (2022) 78 Cal.App.5th 407, 411, fn. 1 [same].)

We deem the trial court’s order to incorporate a judgment of dismissal 

and will review the order.

B. Standards of Review and Governing Principles

A demurrer tests the legal sufficiency of the challenged pleading. 

(Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 

Cal.App.4th 1, 5.) “‘[F]or a demurrer based on the statute of limitations to be 

sustained, the untimeliness of the lawsuit must clearly and affirmatively 

appear on the face of the complaint and matters judicially noticed. 

[Citation.]’” (Austin v. Medicis (2018) 21 Cal.App.5th 577, 585.) When a 

demurrer is sustained, we determine whether the complaint states facts 

sufficient to constitute a cause of action on any theory. (Blank v. Kirwan 

(1985) 39 Cal.3d 311, 318 (Blank).) We review de novo a trial court’s ruling 

on a demurrer. (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 51.)

When a trial court sustains a demurrer without leave to amend, “we 

decide whether there is a reasonable possibility that the defect can be cured 

by amendment.” (Blank, supra, 39 Cal.3d at p. 318.) If we find an 

amendment could cure the defect, we conclude the trial court abused its 
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discretion and we reverse; if not, no abuse of discretion has occurred. (Ibid.) 

The plaintiff has the burden of proving that an amendment would cure the 

defect. (Ibid.; see Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 

1081.)

C. Action to Contest the Trust

Dominic and Eric Jr. contend the trial court erred in sustaining the 

demurrer to the complaint without leave to amend.3 They argue the statute 

of limitations in section 16061.8 is inapplicable to their lawsuit because the 

civil complaint is not “an action to contest the trust.” For the reasons 

discussed below, we disagree.

When a trust becomes irrevocable, section 16061.7 requires a trustee to 

serve a written notification on all beneficiaries and heirs of the settlor. A 

revocable trust may become irrevocable upon the death of the settlor. (Id. at 

subd. (a)(1).) The notification must contain the following language: “‘[y]ou 

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.’” (Id. at subd. (h).) 

The 120-day statute of limitations to “bring an action to contest the trust” is 

codified in section 16061.8. Section 82 defines “trust” as “[a]n express trust, 

private or charitable, with additions thereto, wherever and however 

created.”4

Actions that challenge the validity of a trust are actions that “contest 

the trust” under section 16061.8. (See Estate of Stoker (2011) 193 

3 LaDonna did not file a respondent’s brief.

4 “Unless the provision or context otherwise requires, the definitions in 

[section 82] govern the construction of this code.” (See § 20; id. at § 82.) 

Neither section 16061.7 nor 16061.8 contain a different definition of trust. 
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Cal.App.4th 236, 240–241 (Stoker).) We are “not bound by its label” in 

deciding whether an action is a trust contest. (Stoker, supra, 193 Cal.App.4th

at p. 241.) Rather, we “look to the substance of that [action] and its ‘practical 

effect.’” (Ibid.; see also Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) 

Stoker is instructive here. In Stoker, the court concluded a petition to 

probate a will was an “action to contest the trust” under section 16061.8, 

despite the petition’s label. (Stoker, supra, 193 Cal.App.4th at p. 241.)

There, the trustee of the decedent’s 1997 trust (trustee) filed a petition to 

probate the decedent’s 1997 will. (Id. at p. 239.) Under the 1997 will, the 

trustee was entitled to the residue of the estate when the decedent died.

(Ibid.) The decedent’s children filed a subsequent petition to probate a will 

that the decedent purportedly signed in 2005. (Ibid.) Within the 2005 will, 

the decedent revoked the 1997 trust, eliminating the trustee’s interest in the 

estate. (Id. at pp. 239–240.) The trustee argued the petition to probate the 

2005 will was not “an action to contest the trust” under section 16061.8. (See 

id. at p. 240.) The Stoker court disagreed. (Id. at pp. 240–241.) Because the 

2005 will and the 1997 trust were inconsistent, the Stoker court reasoned 

that “the trial court would have to consider the validity of [the] decedent’s 

revocation of the trust” to decide the petition. (Id. at p. 241.) On that basis, 

the court concluded “[t]he petition to probate the 2005 will is, ‘in practical 

effect,’ an action challenging the validity of the trust” under section 16061.8.

(Ibid.)

Likewise, here, the practical effect of Dominic and Eric Jr.’s complaint

was to challenge the validity of the trust amendment to establish the preamendment trust should govern. Each cause of action in the complaint, like 

the petition in Stoker, would require the trial court to determine the validity 

of the trust amendment. Although the prayer for relief does not expressly 
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ask the court to invalidate the trust amendment, without a finding that the 

trust amendment was invalid, Dominic and Eric Jr. had no interest in the 

trust, and were not entitled to the relief they sought. We therefore conclude 

Dominic and Eric Jr.’s complaint was an “action to contest the trust” 

pursuant to section 16061.8. (See Carter v. Prime Healthcare Paradise Valley 

LLC (2011) 198 Cal.App.4th 396, 412 [to determine which statute of 

limitations governs a given cause of action “[t]he nature of the cause of action 

and the primary right involved, not the form or label of the cause of action or 

the relief demanded, determine which statute of limitations applies”].) 

Because the lawsuit was filed more than a year after LaDonna served 

Dominic and Eric Jr. with the notification, we conclude the complaint is timebarred under section 16061.8.5 The trial court, therefore, properly sustained 

LaDonna’s demurrer without leave to amend. 

Dominic and Eric Jr. rely on inapposite authority to support the 

contention that the complaint is not an “action to contest the trust” under 

section 16061.8. They cite the definition of “direct contest” from an 

inapplicable section of the probate code (§ 21310, subd. (b)). Dominic and 

Eric Jr. argue their complaint is not a “direct contest” as defined in section 

21310, and therefore, it is also not an “action to contest the trust” under 

16061.8. We are not persuaded. Section 21310, subdivision (b) defines a 

“direct contest” as “a contest that alleges the invalidity of a protected 

instrument or one or more of its terms.” Section 21310, subdivision (e) 

defines a “protected instrument” as “(1) [t]he instrument that contains the no 

contest clause” or “(2) [a]n instrument that is in existence on the date that 

the instrument containing the no contest clause is executed and is expressly 

5 We note Dominic and Eric Jr. do not dispute that they filed the 

complaint more than 120 days after service of the notification. (§ 16061.7.) 
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identified in the no contest clause . . . as being governed by the no contest 

clause.” Section 21310, subdivision (c) defines a no contest clause as “a 

provision in an otherwise valid instrument that, if enforced, would penalize a 

beneficiary for filing a pleading in any court.” (§ 21310, subd. (c).) The 

enforceability of a no contest clause is not an issue in Dominic and Eric Jr.’s 

complaint. Therefore, section 21310’s “direct contest” definition has no 

bearing on whether section 16061.8 applies. 

Dominic and Eric Jr.’s reliance on Estate of Lewy (1974) 39 Cal.App.3d 

729 is similarly misplaced. That case involved the interpretation of a will’s 

no contest clause and the statutory scheme and case law governing no contest

clauses. (Id. at pp. 733–735.) We further note Estate of Lewy predated the 

enactment of section 16061.8 by over two decades. (Stats. 1997, ch. 724, 

§ 24.) Because the decision does not address section 16061.8, it does not 

guide our analysis. 

D. Leave to Amend

Dominic and Eric Jr. have failed to demonstrate that any amendment 

could cure the defects alleged in the complaint. Therefore, we conclude the 

trial court did not abuse its discretion in sustaining the demurrer without 

leave to amend. (Rakestraw v. California Physicians’ Service (2000) 81 

Cal.App.4th 39, 43–44; Blank, supra, 39 Cal.3d at p. 318.) 

//

//

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DISPOSITION

Treating the order sustaining the demurrer as a judgment of dismissal, 

we affirm. As no respondent’s brief was filed, no costs are awarded on appeal 

to either party. (Cal. Rules of Court, rule 8.278(a)(5).) 

CERTIFIED FOR PUBLICATION

ZUKIN, J.

WE CONCUR:

CURREY, P. J.

COLLINS, J.