Filed 12/21/17
                 CERTIFIED FOR PUBLICATION



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION FIVE


FRANCINE S. YEH,                          B280003

       Plaintiff and Appellant,           (Los Angeles County
                                          Super. Ct. No. BP165279)
       v.

LI-CHENG TAI et al.,

       Defendants and Respondents.




      APPEAL from a judgment of the Superior Court of Los
Angeles County, Mary Thornton House, Judge. Reversed.
      Becker Law Group, Todd B. Becker and Brian E. Shear for
Plaintiff and Appellant.
      Heisner Álvarez, Olga Álvarez and Rafael F. Bonilla for
Defendants and Respondents.

                      ______________________
                       I. INTRODUCTION

       Plaintiff Francine S. Yeh claims to have purchased a
condominium with her deceased husband, Shu Hsun Tai (“Shu”),
and transferred it to him so that they could obtain a more
favorable loan. She claims that he promised to place her back on
the title to the property, and that she could sell it or keep it after
his death. Instead, he transferred the title to a trust, of which
his children from a prior marriage, defendants Li-Cheng Tai and
Li-Jung Tai, are beneficiaries.
       Plaintiff filed a breach of fiduciary duty action against
defendants under Family Code section 1101,1 essentially seeking
return of the condominium. The trial court sustained without
leave to amend defendants’ demurrer due to the expiration of the
statute of limitations. The court relied on Code of Civil
Procedure sections 366.2 and 366.3, which provide that
actionable claims based on the liability of a decedent, or based on
his testimonial promises, must be filed within one year of his
death. Plaintiff filed this claim about 18 months after her
husband’s death.
      Section 1101, however, contains its own statute of
limitations and specifically addresses marriages ending by death.
Under section 1101, subdivision (d), breach of fiduciary duty
claims filed after the death of a spouse are governed only by
equitable principles of laches. We hold that the Legislature’s
specific treatment of the statute of limitations in section 1101,
subdivision (d) governs instead of the general statute of
limitations in Code of Civil Procedure sections 366.2 and 366.3.

1    Further statutory references are to the Family Code unless
otherwise indicated.



                                  2
Defendants do not argue that plaintiff’s claim is untimely under
laches principles. We therefore reverse the judgment so that
plaintiff may pursue her cause of action arising under section
1101.

                       II. BACKGROUND

      Because this case comes to us on review of a demurrer, we
rely on the facts as alleged by plaintiff. (Evans v. City of Berkeley
(2006) 38 Cal.4th 1, 6.)
      Plaintiff married Shu on September 27, 1996 in Provo,
Utah, and they remained married until Shu’s death on
January 18, 2014. In 1998, plaintiff and Shu moved to
California. On July 29, 1999, plaintiff and Shu purchased the
property at issue in this lawsuit, at 5320 Peck Road in El Monte,
California. The initial purchase agreement lists them as buying
the property as joint tenants.
      Because of plaintiff’s poor credit rating, the mortgage
company advised that the couple could obtain a better interest
rate by holding the property in Shu’s name only. Shu requested
plaintiff sign a quitclaim deed to obtain the more favorable loan,
and plaintiff did so. Shu promised plaintiff she would maintain
her interest in the property and be placed back on the title.
      On September 10, 1999, plaintiff and Shu took out a loan to
finance the property purchase. The down payment came from
plaintiff and Shu’s joint bank account. The loan was paid off by
January 3, 2000, using funds from the couple’s joint account. All
expenses for the property were paid with their joint funds.
      Three days before Shu’s death, plaintiff asked Shu if her
name was on the title. Shu told her the property was “all hers,




                                 3
that she could sell or keep the [p]roperty after his death.”
However, plaintiff discovered on February 10, 2014, that this was
untrue. On that date, she was notified of the existence of the Tai
Family Trust. In 2006, Shu, without plaintiff’s knowledge, had
established that trust, with defendants as beneficiaries. Shu had
executed a trust transfer deed that transferred title of the
property to that trust.
       About 18 months after Shu’s death, on July 29, 2015,
plaintiff filed her petition to set aside a non-probate transfer of
community property, for constructive trust, for instructions to
trustees, for attorney fees, and for damages under the Family
Code. The petition relied primarily on section 1101 in alleging a
breach of fiduciary duty and damages authorized by that section.
Following the court’s grant of a motion for judgment on the
pleadings and a change of plaintiff’s counsel, plaintiff on
August 5, 2016, filed her first amended petition, the operative
pleading. The amended petition again relied on section 1101 in
alleging a breach of fiduciary duty and damages authorized by
that section. Plaintiff alleged the fraud was in violation of Civil
Code section 3294 (the civil punitive damages standard), which
under section 1101, subdivision (h) allows for damages in the
amount of 100 percent of an asset transferred in breach of the
fiduciary duty.
       Plaintiff claims Shu breached his fiduciary duty to her by
fraudulently representing he intended to convey the property to
be the couple’s community property, and intending plaintiff to
rely on his misrepresentations, which plaintiff did in transferring
title to him. As a result of Shu’s breach of fiduciary duty,
plaintiff sought to void the deed transferring title to the trust,
order defendants to convey the property to plaintiff, and award




                                 4
reasonable attorney fees pursuant to section 1101, subdivision
(g).
       Defendants demurred to the petition, arguing that the
petition was filed after the statute of limitations ran. In
defendants’ view, the applicable statute of limitations were Code
of Civil Procedure sections 366.2 and 366.3, as well as Probate
Code section 16061.8. Plaintiff asserted that those statutes of
limitations were inapplicable, and under section 1101 there was
no applicable statute of limitations other than laches.
       The probate court sustained the demurrer to the first
amended petition without leave to amend, finding it barred in its
entirety by Code of Civil Procedure sections 366.2 and 366.3.
Judgment for defendants was entered thereafter.

                       III. DISCUSSION

      On demurrer, we review a complaint de novo to determine
whether it alleges facts sufficient to state a cause of action under
any legal theory and thus to determine whether or not the trial
court erroneously sustained the demurrer as a matter of law.
(McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784,
791.) The sole issue in this appeal is whether the causes of action
in plaintiff’s petition are barred by the applicable statute of
limitations. This issue turns on whether plaintiff’s claim based
on section 1101 is governed by the terms of that section or by the
general statutes of limitations governing claims against deceased
persons.




                                 5
      A. Family Code section 1101

     Section 1101, subdivision (a) creates a cause of action for
breach of fiduciary duty by one spouse against the other for
impairment of the claimant spouse’s undivided half interest in
the community estate.2 A section 1101 cause of action may be
filed as an independent claim during a marriage; in connection
with an action for dissolution of marriage, legal separation, or
nullification; or as an independent claim upon the death of a
spouse. (§ 1101, subd. (f).)
       Certain remedies are authorized under the section,
including the equitable remedies of an accounting (§ 1101, subd.
(b)) and reformation of title to property to add a spouse’s name.
(§ 1101, subd. (c).) Damages “shall include, but not be limited to,
an award to the other spouse of 50 percent, or an amount equal to
50 percent, of any asset undisclosed or transferred in breach of
the fiduciary duty plus attorney’s fees and court costs.” (§ 1101,
subd. (g).) If the plaintiff proves a case for punitive damages
under the standard provided in Civil Code section 3294, damages
“shall include, but not be limited to, an award to the other spouse
of 100 percent, or an amount equal to 100 percent, of any asset
undisclosed or transferred in breach of the fiduciary duty.” (§
1101, subd. (h).)




2      Under section 721, subdivision (b), spouses have a fiduciary
relationship that “imposes a duty of the highest good faith and
fair dealing on each spouse, and neither shall take any unfair
advantage of the other.”




                                6
      Unlike most California statutes, section 1101 provides its
own statute of limitations. And it is an unusual one.3 In
subdivision (d)(1), the section provides for a three-year limitation
period dating from when the claimant spouse learns of the
transaction he or she is seeking to remedy. (§ 1101, subd. (d)(1).)
However, subdivision (d)(2) provides that the three-year
limitation period does not apply in two circumstances: if the
claim is brought upon the death of a spouse, or if the claim is
brought in conjunction with an action for legal separation,
dissolution, or nullification of the marriage. In those
circumstances, a claim “may be commenced . . . without regard to
the time limitations set forth in paragraph (1).” (§ 1101, subd.
(d)(2).) In those circumstances, however, the defense of laches
may be raised. (§ 1101, subd. (d)(3).)
       Consequently, whether or not the three-year statute of
limitation runs during the marriage, section 1101, subdivision
(d)(2) provides a claimant spouse with a fresh opportunity at
obtaining a remedy for breach of fiduciary duty upon either a
separate legal action to terminate the marriage or upon the
spouse’s death. Further, as Patrick v. Alacer Corp. (2011) 201
Cal.App.4th 1326, 1337 (Patrick), held, “no limitations period


3      Section 1101, subdivision (d) provides: “(1) Except as
provided in paragraph (2), any action under subdivision (a) shall
be commenced within three years of the date a petitioning spouse
had actual knowledge that the transaction or event for which the
remedy is being sought occurred. [¶] (2) An action may be
commenced under this section upon the death of a spouse or in
conjunction with an action for legal separation, dissolution of
marriage, or nullity without regard to the time limitations set
forth in paragraph (1). [¶] (3) The defense of laches may be
raised in any action brought under this section.”



                                 7
applies . . . except for laches, when the marriage ends through
litigation or death.” Patrick, which involved declaratory relief
only, reasoned that the text of the statute demonstrated the
Legislature’s intent to apply no limitation period: “As the court
aptly noted below, ‘Having evidenced a concern with statute of
limitation issues, and having just provided a [three]-year
limitations period in section 1101[, subdivision] (d)(1), had the
[L]egislature intended a particular statute of limitations to apply
upon death, it would have so stated.’ But instead, the plain
language of subdivision (d)(2) provides that ‘[a]n action may be
commenced under this section upon the death of a spouse . . .
without regard to the time limitations set forth in paragraph (1).’
In other words, the Legislature set forth a limitations period and
immediately clarified that period’s own limit. (Fn. omitted.)”
(Ibid.)4 Patrick explained that the absence of a limitations period
for section 1101 actions was “entirely understandable” because
spouses hold interests in community property as tenants in
common, and no statute of limitations applies to actions between
tenants in common for partition. (Id. at p. 1338.)
       The author of section 1101, former Senator Bill Lockyer,
appears to have intended that result in order to not pressure


4      Accordingly, Ross and Cohen, California Practice Guide:
Probate (The Rutter Group 2017) paragraph 4:19.6 provides in
pertinent part: “[T]here is no statute of limitations bar if the
action [under § 1101, subd. (a)] is brought in conjunction with a
legal separation, dissolution or nullity proceeding; or if the action
is pursued following a spouse’s death. [Citations.] [¶] By the
same token, any action brought under [§ 1101]—even upon a
spouse’s death—is subject to a laches defense (unreasonable
delay in seeking relief to prejudice of other party).”




                                  8
spouses to litigate during a marriage. As Lockyer explained
when section 1101 was enacted as former Civil Code section
5125.1 in 19865, “While [the bill] provides interspousal remedies
during the marriage for those who do not wish to await litigation
attending the breakdown or termination of the marriage, it
intends to apply absolutely no pressure on spouses to undertake
such litigation during the ongoing marriage. Accordingly,
[former Civil Code s]ection 5125.1[, subdivision] (d) makes clear
that a choice not to proceed within three years after learning of a
management wrong has no negative impact on the spouse’s claim
if later pursued at the time of an action for nullity, legal
separation, dissolution of marriage or upon the death of a spouse,
as is permitted by current law.” (Bruch, Protecting The Rights Of
Spouses In Intact Marriages: The 1987 California Community
Property Reform And Why It Was So Hard To Get (1990) 1990
Wis. L.Rev. 731, 767 (Bruch).)
       In enacting the section, the Legislature acted to “preserve
the unhampered right under California law of a spouse to seek
relief upon termination of the community,” and “[t]o guarantee
this result” restricted the application of the three-year statute of
limitations period it otherwise borrowed from the Uniform
Marital Property Act. (Bruch, supra, 1990 Wis. L.Rev. at p. 755
& fn. 81.) Along with eliminating the statute of limitations, at
the request of the Family Law Section of the State Bar, the

5      Section 1101 was added to the Family Code in 1992 as a re-
codification of former Civil Code section 5125.1, replacing the
latter with only “technical, nonsubstantive changes.” (Stats.
1992, ch. 162, § 10; Cal. Law Revision Com. com., 29C West’s
Ann. Fam. Code (2004 ed.) foll. § 1101, p. 553.) Former Civil
Code section 5125.1 was enacted in 1986. (Stats. 1986, ch. 1091,
§ 2.)



                                 9
Legislature added its reference to the doctrine of laches to make
clear that the statute “did not overrule that equitable doctrine.”
(Bruch, supra, 1990 Wis. L.Rev. at p. 755, fn. 82.) The result of
the elimination of the three-year statute of limitations is that a
spouse who chooses not to litigate during the marriage and
decides to wait to bring a section 1101 action until after the
marriage has ended through death or litigation is not penalized,
though the action is subject to laches.6
      In this case, plaintiff commenced this breach of fiduciary
duty action under section 1101, subdivision (a), following the
death of her former spouse Shu, thus rendering the three-year
statute of limitations in subdivision (d)(1) inapplicable. Under
subdivisions (d)(2) and (d)(3), the only time limitation on bringing
this action is the equitable defense of laches. Defendants have
raised no argument that plaintiff’s claim is barred by the
equitable laches doctrine. We therefore hold that, based on the
pleadings, plaintiff’s claim pursuant to section 1101 is not barred
by the statute of limitations.

B. Code of Civil Procedure section 366.2

     Defendants argue that, as the trial court found, the
governing statute of limitations is provided by Code of Civil

6      Because laches is not at issue in this appeal, we need not
decide whether the period of time that has passed during the
marriage without the plaintiff spouse acting may be considered
by a court in applying the equitable laches doctrine. The author
of the bill stated that “no presumption of laches or other
independent effect on the application of the doctrine is intended
to arise from a choice not to pursue remedies during the ongoing
marriage. . . .” (Bruch, supra, 1990 Wis. L.Rev. at p. 767.)



                                10
Procedure sections 366.2 and 366.3, which generally apply to
causes of actions based on the acts of decedents. Code of Civil
Procedure section 366.2, subdivision (a) provides, “If a person
against whom an action may be brought on a liability of the
person, whether arising in contract, tort, or otherwise, and
whether accrued or not accrued, dies before the expiration of the
applicable limitations period, and the cause of action survives, an
action may be commenced within one year after the date of death,
and the limitations period that would have been applicable does
not apply.”
       “[O]n its face, section 366.2 applies to claims that could
have been brought against the decedent had he or she lived.”
(Shewry v. Begil (2005) 128 Cal.App.4th 639, 644.) If Code of
Civil Procedure section 366.2 applies, there is no tolling
applicable, unless otherwise provided in the statute. (Code Civ.
Proc., § 366.2, subd. (b).)
       In most cases involving a decedent’s liability, Code of Civil
Procedure section 366.2, subdivision (a) applies rather than the
limitations period that would otherwise be applicable to a cause
of action, as there is no conflict between the two. In creating
most statutes of limitations, the Legislature has not treated
actions against decedents differently than other actions. When
section 1101, subdivision (d), is applicable, however, there is a
conflict, as the Legislature in that subdivision not only provided
an ordinary statute of limitations (three years) but specifically
addressed the applicable limitations period following a spouse’s
death (none, subject to laches only). Thus, there is a conflict
between section 1101, subdivision (d) and Code of Civil Procedure
section 366.2, subdivision (a) in this case.




                                11
       When two statutes of limitations are applicable, the specific
takes precedence over the general. “In the construction of a
statute the intention of the Legislature . . . is to be pursued, if
possible; and when a general and particular provision are
inconsistent, the latter is paramount to the former.” (Code Civ.
Proc., § 1859; see Collection Bureau of San Jose v. Rumsey (2000)
24 Cal.4th 301, 310 [finding statute of limitations under Probate
Code section 13554 more specific than section 914 and thus
controlling; “Those provisions [in Probate Code section 13554]
specifically address the liability of a married person for the debts
incurred by the other spouse upon the death of that spouse,
whereas Family Code section 914 merely addresses the general
liability of a spouse for the debts of the other spouse incurred
during marriage.”].)
       Here, Code of Civil Procedure section 366.2 is the general
statute, concerning personal liability of a deceased person.
Section 1101, subdivision (a) is the specific statute governing a
particular scheme of remedies for breach of fiduciary duty by a
spouse that impaired the claiming spouse’s one-half share of
community property. Section 1101, subdivision (d)(2)
contemplates claims under section 1101 brought against a spouse
when the marriage ended by death, and it imposes no limitations
period, other than the defense of laches. As the more specific
statute, section 1101, subdivision (d) provides the controlling
statute of limitations.
       As well, in the event two statutes conflict and cannot be
reconciled, later enactments supersede earlier ones. (Cross v.
Superior Court (2017) 11 Cal.App.5th 305, 322-323; Collection
Bureau of San Jose v. Rumsey, supra, 24 Cal.4th at p. 311.) The
one-year statute of limitations for actions against decedents, now




                                12
codified in Code of Civil Procedure section 366.2, dates from the
beginning of our state. It was enacted as former Code of Civil
Procedure section 353 in 1872 (Historical and Statutory Notes,
13C West’s Ann. Code Civ. Proc. (2006 ed.), foll. § 353, p. 357),7
which codified language from 1850. (See Estate of Bullard (1897)
116 Cal. 355, 356 [“Section 353 of the Code of Civil Procedure
provides: ‘If a person against whom an action may be brought die
before the expiration of the time limited for the commencement
thereof, and the cause of action survive, an action may be
commenced against his representatives after the expiration of
that time, and within one year after the issuance of letters
testamentary or of administration.’ This provision is identical
with that contained in section 24 of the limitation act of 1850
(Stats. 1850, p. 346). . . .”].)
       In contrast, as stated earlier, section 1101 was originally
enacted much more recently, in 1986, as former section 5125.1 of
the Civil Code. At that time, former Code of Civil Procedure
section 353 provided the one-year statute of limitations for
actions against the representatives of a decedent.8 As a


7     Former Code of Civil Procedure section 353, subdivision (b)
was renumbered as Code of Civil Procedure section 366.2 in 1992.
(Stats. 1992, ch. 178, § 8). The Law Revision Commission
comments state: “Section 366.2 restates former [s]ection 353[,
subdivision] (b) without substantive change.” (Cal. Law Revision
Com. com., 13C West’s Ann. Code Civ. Proc. (2016 ed.) foll. §
366.2, p. 452.)

8     In 1986, former section 353 of the Code of Civil Procedure
provided in pertinent part: “If a person against whom an action
may be brought dies before the expiration of the time limited for
the commencement thereof, and the cause of action survives, an



                                13
conflicting, later-enacted statute passed while the Legislature
was aware of the existence of the earlier one, the terms of current
section 1101, subdivision (d) govern.
        Finally, the most natural reading of section 1101,
subdivision (d) is that it displaces all statutes of limitations that
might otherwise apply to section 1101, subdivision (a) claims.
Subdivision (d)(2) states that an action under the section may be
commenced upon a spouse’s death or in conjunction with a
dissolution, separation, or nullification action “without regard to
the time limitations” in subdivision (d)(1), i.e., the requirement
that section 1101 claims be filed within three years of discovery
of the alleged breach. If generally applicable statutes of
limitations applied to section 1101, subdivision (a) claims, the
four-year statute of limitations for breach of fiduciary duty would
apply. (See Thomson v. Canyon (2011) 198 Cal.App.4th 594, 606
[Code of Civil Procedure section 343 four-year limitations period
applies to breach of fiduciary duty claims].) Consequently, a
claim would be precluded where a spouse refrained from bringing
it for longer than four years during the marriage, undoing
subdivision (d)(2)’s apparent purpose of allowing section 1101,
subdivision (a) claims to proceed in an action to terminate the
marriage or after the other spouse’s death. Likewise, Code of


action may be commenced against his representatives, after the
expiration of that time, and within one year after the issuing of
letters testamentary or of administration, or an action against
the estate provided for by subdivision (b) of [s]ection 385 of the
Code of Civil Procedure, subdivision (b) of [s]ection 707 of the
Probate Code or [s]ection 721 of the Probate Code may be
commenced within one year after the expiration of the time
otherwise limited for the commencement thereof.” (Stats. 1971,
ch. 1638, § 1.)



                                 14
Civil Procedure section 366.2 is another generally applicable
statute of limitations. Its application here, when the discovery of
the alleged breach was at or after the time of death, would mean
that the Legislature chose to eliminate the three-year statute of
limitations via subdivision (d)(2), even though doing so was
immaterial because a shorter one-year limitations period applied
in its place. (See City and County of San Francisco v. Farrell
(1982) 32 Cal.3d 47, 54 [“In construing the words of a statute . . .
to discern its purpose, the provisions should be read together; an
interpretation which would render terms surplusage should be
avoided, and every word should be given some significance,
leaving no part useless or devoid of meaning.”].) The more
natural reading of section 1101, subdivision (d), is that it
provides a complete statement of the limitations periods
applicable to section 1101, subdivision (a) claims, by imposing a
three-year statute of limitations and then eliminating it in some
circumstances.
       Accordingly, for plaintiff’s causes of action arising under
section 1101, subdivision (a), the applicable statute of limitations
is section 1101, subdivision (d), which provides for no limitations
period for actions commenced under the section when the
marriage ends by death or litigation. The trial court erred by
applying Code of Civil Procedure section 366.2 as the limitations
period.

C. Code of Civil Procedure section 366.3, subdivision (a)

      The trial court also relied on the one-year statute of
limitations in Code of Civil Procedure section 366.3, subdivision
(a), which governs claims arising from promises or agreements




                                 15
with a decedent: “If a person has a claim that arises from a
promise or agreement with a decedent to distribution from an
estate or trust or under another instrument, whether the promise
or agreement was made orally or in writing, an action to enforce
the claim to distribution may be commenced within one year after
the date of death, and the limitations period that would have
been applicable does not apply.” Like Code of Civil Procedure
section 366.2, Code of Civil Procedure section 366.3 does not
permit tolling except as provided in the statute. (Code Civ. Proc.,
§ 366.3, subd. (b).)
       Defendants contend plaintiff alleged an oral testamentary
promise, citing plaintiff’s assertions in her opening brief that
“[decedent] promised, as part of the transaction, that he would
thereafter transfer the property to both their names.” On
demurrer, we do not review the factual assertions in the
appellate briefs, but only those in the pleadings. (See McClain v.
Octagon Plaza, LLC, supra, 159 Cal.App.4th at p. 791.)
       In her amended petition, plaintiff alleged that Shu
promised to put plaintiff on the title, which is not a testamentary
distribution promise. Plaintiff alleged: “Decedent promised
[plaintiff] that her interest in the Property would still belong to
her and that they would place her on title after the purchase.”
Furthermore, plaintiff alleged that “[a]t all times, it was
understood and agreed between Decedent and [plaintiff] that al[l]
property they acquired during marriage would be and would
remain, community property.” The promise to put plaintiff on
the title did not concern a distribution from an estate or trust,
but an act while Shu was alive to ensure plaintiff was on the title
to the property such that the property was community property.




                                16
       Defendants additionally argue that a deed, the means by
which plaintiff allegedly was to be placed on the title, is “another
instrument” under the terms of Code of Civil Procedure section
366.3, subdivision (a), so that statute applies. Although a deed is
“another instrument” in general, Code of Civil Procedure section
366.3 contemplates a promise of “distribution from an estate or
trust or under another instrument . . . .” The “instrument”
referred to must be one that works a “distribution.”
“‘Distribution,’ when used as a term of art in probate law, means
‘the process of dividing an estate after realizing its movable
assets and paying out of them its debts and other claims against
the estate.’ [Citation.] In other words, it refers to the
disbursement of assets to heirs or beneficiaries.” (Estate of
Ziegler (2010) 187 Cal.App.4th 1357, 1365; see also Ferraro v.
Camarlinghi (2008) 161 Cal.App.4th 509, 555 [“[T]he intent of
the phrase [‘a promise or agreement with a decedent to
distribution from an estate or trust’] seems fairly clear: to reach
any action predicated upon the decedent’s agreement to
distribute estate or trust property in a specified
manner. . . . [W]e must conclude that the statute applies to all
actions predicated on a decedent’s promise to make specified
distributions upon his death.”].) Here, a promise of putting
plaintiff on the title, even by deed, is not for the purpose of
disbursement of assets after death under Code of Civil Procedure
section 366.3.
       Accordingly, Code of Civil Procedure section 366.3 does not
apply to a cause of action based on Shu’s alleged promise that
plaintiff would be put on the title to the property. The alleged
promise is simply evidence that plaintiff might use to prove her
breach of fiduciary duty claim under section 1101.




                                 17
D. Probate Code section 16061.8

       Defendants contend the first amended petition is an action
to contest the Tai Family Trust and thus time-barred under
Probate Code section 16061.8, which provides: “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 [s]ection
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 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.” As noted, plaintiff was
served with notice of the Tai Family Trust on February 10, 2014
and brought this action on July 29, 2015.
       Defendants contend this is an action to contest the trust
because Probate Code section 21310, subdivision (b)(5), provides
in pertinent part: “‘Direct contest’ means a contest that alleges
the invalidity of a protected instrument or one or more of its
terms, based on one or more of the following grounds: [¶] . . . [¶]
Revocation of a . . . trust pursuant to [s]ection 15401 . . . .” As
plaintiff is attempting to remove from the Tai Family Trust the
only asset in it, defendants argue that plaintiff is seeking a
revocation of the trust terms and thus contesting the trust.
Defendants are incorrect. The definition in Probate Code section
21310 arises in the context of beneficiaries contesting trusts with
no-contest clauses. (Prob. Code, § 21310, subd. (a) [“‘Contest’
means a pleading filed with the court by a beneficiary that would
result in a penalty under a no contest clause, if the no contest
clause is enforced.”] (emphasis added).) Plaintiff is not a




                                18
beneficiary under the Tai Family Trust, having been excluded by
her former husband.
      In addition, “‘[w]hether there has been a “contest” within
the meaning of a particular no-contest clause depends upon the
circumstances of the particular case and the language used.’
[Citations.]” (Burch v. George (1994) 7 Cal.4th 246, 254-255.) In
accord with the Probate Code definition, the Tai Family Trust
defines a contest in its no-contest clause provision as by a
beneficiary. Thus, plaintiff’s first amended petition is not a
contest of the Tai Family Trust as defined by the trust’s
language, and Probate Code section 16061.8 does not apply.

                       IV. DISPOSITION

      The judgment is reversed. Plaintiff Francine S. Yeh may
proceed with her cause of action under section 1101. Plaintiff is
awarded costs on appeal.
              CERTIFIED FOR PUBLICATION



                                     RAPHAEL, J.



We concur:



      KRIEGLER, Acting P.J.                BAKER, J.

     Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.



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