Filed 6/25/13
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                       DIVISION TWO


STEVEN M. STRALEY,                                B240380

        Plaintiff and Appellant,                  (Los Angeles County
                                                  Super. Ct. No. YP011575)
        v.

WILLIAM O. GAMBLE III,
as Trustee, etc.,

        Defendant and Respondent.




        APPEAL from an order of the Superior Court of Los Angeles County. Dudley W.
Gray II, Judge. Reversed.

        Spierer, Woodward, Corbalis & Goldberg and Stephen B. Goldberg for Plaintiff
and Appellant.

        Law Office of Susan H. Hoover and Susan H. Hoover for Defendant and
Respondent.


                                   _______________________
       Steven M. Straley appeals from a trial court order denying his petition for an order
to determine the validity of a trust amendment (the petition). He contends that the trial
court erred in finding that the petition was untimely pursuant to Probate Code sections
16061.7 and 16061.81 and that it was barred by the principle of laches.
       We agree with appellant that he timely brought an action to contest the trust.
Accordingly, we reverse.
                  FACTUAL AND PROCEDURAL BACKGROUND
Factual Background
       Rebecca S. Straley, appellant‟s mother, was the trustor and settlor of the
Rebecca S. Straley Living Trust Dated May 27, 2009 (the trust). Appellant was
deliberately not named as a beneficiary of the trust. But, under the provisions of the trust,
Mrs. Straley had the right, as settlor, to amend the trust in writing as she elected.
       On April 3, 2011, Mrs. Straley executed (or attempted to sign) some sort of
amendment to the trust (the amendment), purportedly distributing her entire estate to
appellant. According to appellant‟s opening brief, Mrs. Straley had reconciled with
appellant and wanted to amend the trust to include him as a beneficiary. Respondent
William O. Gamble III (trustee), the successor trustee, challenges the validity of the
amendment, pointing out that the amendment does not mention the trust, does not state
that it was amending the trust, was likely “typed” by someone when Mrs. Straley was on
her deathbed, and a shaky “R” is supposed to be Mrs. Straley‟s signature.
       Mrs. Straley passed away on April 6, 2011.
Procedural Background
       On April 21, 2011, the successor trustee served appellant with notice of the
administration of the trust, pursuant to section 16061.7. Five days later, appellant was
served with a copy of the trust.




1      All further statutory references are to the Probate Code unless otherwise indicated.


                                              2
       On August 18, 2011, appellant filed the petition. In the petition, appellant asked
the trial court to determine whether the entire trust distribution had been changed
pursuant to the amendment. Appellant did not, however, serve notice of his petition until
he served notice of hearing on October 28, 2011.
       On November 28, 2011, the trustee filed and served his response to the petition,
asserting, inter alia, that the petition was time-barred, pursuant to section 16061.7 and the
doctrine of laches, and that the amendment was invalid. Specifically, the trustee claimed
that the delay in serving notice of hearing on the petition for 187 days exceeded the 120-
statutory period to “bring an action” to contest the trust under sections 16061.7 and
16061.8. Appellant filed a brief memorandum of points and authorities in rebuttal.
       At the hearing on November 30, 2012, the trial court denied appellant‟s petition
for the reasons set forth in the trustee‟s response. In particular, the trial court found that
the petition was time-barred by section 16061.7 and by the equitable doctrine of laches.
       Appellant‟s timely appeal ensued.
                                       DISCUSSION
I. Standard of review
       As the parties agree, we review the trial court‟s order to the extent it is based upon
the interpretation of sections 16061.7 and 16061.8 de novo. (People ex rel. Dept. of
Transportation v. Dry Canyon Enterprises, LLC (2012) 21 Cal.App.4th 486, 491.) “In
construing a statute, [the court‟s] fundamental task is to ascertain the Legislature‟s intent
so as to effectuate the purpose of the statute. [Citation.] We begin with the language of
the statute, giving the words their usual and ordinary meaning. [Citation.] The language
must be construed „in the context of the statute as a whole and the overall statutory
scheme, and we give “significance to every word, phrase, sentence, and part of an act in
pursuance of the legislative purpose.‟” [Citation]” (Smith v. Superior Court (2006) 39
Cal.4th 77, 83.)
       We review the trial court‟s finding that the doctrine of laches applies for abuse of
discretion. (In re Marriage of Fogarty & Rasbeary (2000) 78 Cal.App.4th 1353, 1364–
1365 (Fogarty).)

                                               3
II. The trial court erred in finding that appellant’s petition was time-barred by the
statute of limitations and the doctrine of laches
       A trustee or beneficiary of a trust may petition the court to determine the validity
of a trust provision. (§ 17200, subd. (b)(3).) “A proceeding under this chapter is
commenced by filing a petition stating facts showing that the petition is authorized under
this chapter. The petition shall also state the grounds of the petition and the names and
addresses of each person entitled to notice of the petition.” (§ 17201.) At the time the
petition is filed, the clerk‟s office sets a hearing date on the petition. (See, e.g., Super. Ct.
L.A. County, Local Rules, rule 4.9.) Then, “[a]t least 30 days before the time set for the
hearing on the petition, the petitioner shall cause notice of hearing to be mailed.”
(§ 17203, subd. (a.).)
       The time frame in which to bring an action to contest a trust is delineated by
statute. Section 16061.8 provides, in relevant part: “No person upon whom the
notification by the trustee is served pursuant to this chapter . . . may bring an action to
contest the trust more than 120 days from the date the notification by the trustee is served
upon him.”
       Here, the trustee served the notification on appellant on April 21, 2011. Thus,
appellant had until August 24, 2011, to “bring an action” to contest the trust. Because
appellant filed his petition on August 18, 2011, the petition was timely filed. In other
words, appellant brought an action to contest the trust within the time constraints set forth
in section 16061.8.
       In defending the trial court‟s order, the trustee argues that to “bring an action,”
appellant was required to file and serve his petition within the 120-day statutory period.
In light of the procedure set forth above, we cannot agree. Appellant was not required to
serve his petition at the time it was filed. Rather, he was required to serve his petition
after the clerk set the hearing date, and at least 30 days before that hearing date.
       Our conclusion is bolstered by the definition of the phrase “bring suit.” To “bring
suit” is to initiate legal proceedings in a legal action; “a suit is „brought‟ at the time it is
commenced.” (Black‟s Law Dict. (6th ed. 1990) p. 192, col. 2.) If something more than

                                                4
just filing the petition was required, either the Judicial Council or the Legislature could
have said so. (See, e.g., Cal. Rules of Court, rules 3.1342(a), 3.1700(a)(1).)
       We also gain the guidance of other similar statutes. (See, e.g., § 1000 [providing
that the rules of practice in civil actions, including the Code of Civil Procedure, apply to
proceedings under the Probate Code].) In civil actions, “[a]n action is commenced
. . . when the complaint is filed.” (Code Civ. Proc., § 350.) And, the statute of
limitations in civil actions stops running the moment the complaint is filed, not when it is
served. (See, e.g., Brumley v. FDCC California, Inc. (2007) 156 Cal.App.4th 312, 320
[statute of limitations operates prior to filing]; McOwen v. Grossman (2007) 153
Cal.App.4th 937, 943.) Criminal actions are the same. (See, e.g., Pen. Code, § 804,
subd. (b); Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 792 [“A
prosecution for a misdemeanor offense is not „commenced‟ for criminal statute of
limitations purposes until „[a] complaint is filed‟”].)
       While the statute does not use the word “filed,” we believe that the statutory
phrase “bring an action” is clear: Appellant brought the action when he filed his petition.
Service of the petition was not required to timely bring an action.
       Having determined that appellant‟s petition was timely under the terms of the
statute, we next consider whether the petition was nonetheless barred by the doctrine of
laches. “Laches is an equitable defense to the enforcement of stale claims. It may be
applied where the complaining party has unreasonably delayed in the enforcement of a
right, and where that party has either acquiesced in the adverse party‟s conduct or where
the adverse party has suffered prejudice. . . . [Citations.]” (Fogarty, supra, 78
Cal.App.4th at pp. 1359–1360; see also In re Marriage of Copeman (2001) 90
Cal.App.4th 324, 333 [“„In practice, laches is defined as an unreasonable delay in
asserting an equitable right, causing prejudice to an adverse party such as to render the
granting of relief to the other party inequitable. [Citation.] Thus, if a trial court finds
(1) unreasonable delay; and (2) prejudice, and if its findings are not palpable abuses of
discretion, a finding of laches will be upheld on appeal.‟ [Citation.]”], superseded by



                                               5
statute on other grounds as stated in In re Marriage of Fellows (2006) 39 Cal.4th 179,
185.)
        Despite the deferential standard of review, we conclude that the trial court erred in
finding that appellant‟s petition was barred by the doctrine of laches. In particular, there
is no indication that the trustee was prejudiced by any sort of delay in the timely filing
and subsequent service of the petition. Certainly trusts are supposed to be administered
expeditiously. (Collection Bureau of San Jose v. Rumsey (2000) 24 Cal.4th 301, 308.)
But, there is no evidence here that the trust‟s assets were in fact administered before
appellant‟s petition was heard. While the trustee argues that the trial court could have
inferred that the trustee already commenced distributing trust assets, that argument is
based upon pure speculation. (City of Maywood v. Los Angeles Unified School Dist.
(2012) 208 Cal.App.4th 362, 386 [substantial evidence is not argument, speculation,
unsubstantiated opinion or narrative]; State Comp. Ins. Fund v. Workers’ Comp. Appeals
Bd. (1998) 18 Cal.4th 1209, 1216 [speculation is not substantial evidence].)
                                      DISPOSITION
        The order is reversed. Appellant is entitled to costs on appeal.
        CERTIFIED FOR PUBLICATION.




                                                  _____________________, J.
                                                    ASHMANN-GERST

We concur:



_____________________, P. J.
      BOREN



_____________________, J.
      CHAVEZ

                                              6
