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.,

Plaintiff s and Appellants ,

v.
LADONNA GREEN , Defendant and Respondent

. B 323621
(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.2 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. Plaintif fs 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 t he trust

. Defendant filed a demurrer to plaintiffs’ complaint on the ground that all of plaintiffs’ causes of action were time

barred ( Prob

. Code , § 16061.8. ) The trial court agreed and sustained the
demurrer without leave to amend. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND O ur 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
Berk eley (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.)

.3

B. The Original Trust and t he 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 descend ants, 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 signatu re

. 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 exce rpts 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 origina l 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, t he 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.4

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
fidu ciary 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 “handwr iting 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 i n 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

- b arred

.5

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 ha d the “practical effec t” of being “ an action to contest the trust ” because ( 1 ) the complaint place d 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 a pply

. 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

. T he court reasoned “[a]lthough this is a civil action and there are different cau ses 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 appea led.

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 LaDonn a ’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.)6

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 al so 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 wil l review the order

.

B. Standards of Review and Governing Principles A demurrer tests the legal suffici ency 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 affirma tively 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 sustain s a demurrer without leav e 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 its7

discretion and we reve rse; if not, no abuse of discretion has occurred. ( Ibid. )
T he 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 “ a n action to conte s t the trust .” F or the reasons discussed below, w e disagree

. W hen a trust becomes irrevocable , s ection 16061.7 requires a trustee to serve a written notification on all beneficiaries and heirs of the settlor

. A revocable trust may become i rrevocable 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 y ou. ’ ” ( 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 “Un less 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 definitio n of trust.8

Cal.App.4th 236, 240

– 241 ( Stoker ) .) We are “not bound by its label” in deciding whether an act ion 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) fi led 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 t he 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 acti on 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

e ffect,’ an action challenging the validity of the trust” under section 16061.8. ( Ibid. )
Likewise , here, the practical effect of Dominic and Eric Jr. ’ s complain t was to challenge the validity of the trust amendment to establish the pre

amendment trust shou ld 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 expressly9

ask the court to invalidate the trust amendme nt, 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

a nd 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 time

barred 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 th e 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 c ontest 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.)10

identified in the no contest clau se . . . 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.” (§ 2131 0, 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 E state 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 an y 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.)
//
//
//11 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 par ty. (Cal. Rules of Court, rule 8.278(a)(5).) CERTIFIED FOR PUBLICATION

ZUKIN , J.

WE CONCUR:

C URREY , P. J.

COLLINS , J.