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Court of Appeal, Second District, California.

KACEY M. RUSH, Petitioner and Appellant, v. SHEILA HOPE THOMSON, As Executor, Etc., Respondent.


Decided: August 23, 2011

Robert Cipriano for Petitioner and Appellant. Law Offices of Asher A. Levin and Asher Aaron Levin for Respondent.


Kacey M. Rush appeals an order denying her second petition to revoke the will of her father, the decedent, Robert Lee Rush, on statute of limitations grounds.   The second petition was filed more than 120 days after the will was admitted to probate.  Probate Code 1 section 8270, subdivision (a) requires a petition to revoke a will be filed within 120 days after the will is admitted to probate.   We affirm.


The decedent died on March 23, 2009.   Prior to his death, the decedent was co-habiting with Sheila H. Thompson (the executor).   On June 17, 2009, the executor filed a petition for:  admission of a will executed by the decedent on March 17, 2008;  issuance of letters testamentary;  and her appointment as executor with full authority and without a bond in accordance with the terms of the will.   The will provided that the executor was the sole beneficiary of all of the decedent's assets to the exclusion of all others.   The decedent's will expressly stated his failure to leave any property to Ms. Rush was intentional.   On October 23, 2009, the probate court granted the petition, admitted the will to probate, appointed Ms. Thompson as executor and issued letters testamentary.

On February 10, 2010, Ms. Rush filed the first of two petitions to revoke the order admitting the will to probate.   The original petition alleged that Ms. Rush had an interest in the estate as she is the decedent's sole surviving child and was an omitted heir.   Ms. Rush also alleged the decedent's granddaughter was an omitted heir.   The original petition requested revocation of the will on the grounds it:  was not executed by the decedent in a manner and form required by law;  was procured through undue influence;  and failed to conform to requirements for pretermitted and disinherited heirs.   Attached to Ms. Rush's original revocation petition was a declaration by one of the witnesses to the execution of the will, Gustavo Rico, indicating he had actually witnessed its execution after the decedent's death at the executor's behest.

The summons and original petition were served on the executor on February 13, 2010.   After the executor answered the petition, the matter was set for hearing on March 26, 2010.   On March 25, 2010, although somewhat cryptic, the probate attorney's notes indicated that a number of items needed to be “cleared” through a supplemental filing prior to the hearing.   The items included:  proof of service of the summons issued on the executor in her representative capacity;  evidence to support the absence of notice to Ms. Rush regarding the September 9, 2009 filing of the petition to administer the estate;  Ms. Rush's standing to bring the petition to revoke the probate of will;  an explanation for failing to file objections to the executor's petition to administer the estate;  support for the contention that the decedent's granddaughter was an heir at law;  and the names of all of the witnesses to the execution of the decedent's will.

On March 26, 2010, the hearing was continued to May 7, 2010, and subsequently to July 9, 2010, for the notes to be cleared.   On July 9, 2010, Ms. Rush's counsel, Matthew Chapman, did not appear in court.   The executor's attorney was present.   The probate court denied the original petition without prejudice.

No reporter's transcript or suitable substitute of the July 19, 2010 hearing when the first petition was denied without prejudice has been provided.   A declaration filed by Ms. Rush's counsel in connection with the demurrer to the second revocation petition states:  “At the scheduled hearing on July 9, 2010, I called the court at approximately 8:45. a.m. for second call, and was informed by the clerk that the matter had already been called and that the petition had been dismissed.  [¶] ․ I was aware of the tentative ruling of dismissal prior to my call by virtue of having reviewed the probate notes via the court [Web site].  [¶] ․ I indicated to opposing counsel that morning that I would be filing another petition [f]orthwith.”

On September 17, 2010, 70 days later, Ms. Rush filed the second petition to revoke the will.   The second petition asserted two of the same grounds as the original petition—the manner and form the will was executed was not authorized by law and it was procured through the exercise of undue influence.   However, the second petition deleted the allegations regarding pretermitted and disinherited heirs and added extrinsic fraud and unclean hands claims.   The second petition contains no allegations justifying the filing of the pleadings beyond the section 8270, subdivision (a) statute of limitations.

On October 20, 2010, the executor demurred to the second revocation petition on the ground it was time barred by the section 8270, subdivision (a) 120–day statute of limitations.   Ms. Rush opposed the demurrer arguing she had standing to file the revocation petition and had filed a timely original petition.   She further asserted, without citation to authority, the statute of limitations did not apply in cases of extrinsic fraud and undue influence.

The demurrer was set for hearing on October 29, 2010, which was the same date set for hearing on the second revocation petition.   The October 27, 2010 probate attorney's notes indicate there were three items which needed to be to cleared including:  proof of service on the executor;  the timeliness of the second petition;  and Ms. Rush's claims regarding lack of service of the petition to administer the estate.   On December 10, 2010, the hearings on the revocation petition and demurrer were continued to January 21, 2011.

The matters were called for hearing on January 21, 2011.   No reporter's transcript or a suitable substitute of the January 21, 2011 hearing has been provided.   After taking the matter under submission, the probate court sustained the demurrer to the revocation petition without leave to amend.   The four-page written order sustaining the demurrer without leave to amend states:  the September 17, 2010 revocation petition was untimely because it was filed 329 days after the will was admitted to probate;  there is no merit to Ms. Rush's assertion there was undue influence and extrinsic fraud in procuring the will;  this is because there was no evidence such alleged conduct prevented the timely filing of the revocation petition;  and the July 9, 2010 denial without prejudice of the timely petition did not mean that Ms. Rush was free to file a second petition without regard to the section 8270, subdivision (a) limitations period.   Citing Thomas v. Gilliland (2002) 95 Cal.App.4th 427, 432–436 and Troche v. Daley (1990) 217 Cal.App.3d 403, 412, the probate court concluded that the denial without prejudice was equivalent to a dismissal without prejudice.   The probate court ruled that in the case of a “dismissal without prejudice,” plaintiff is not barred from filing another action on the same cause of action if done within the applicable limitation period.   The probate court further indicated the first petition had been denied for failure to diligently address outstanding issues raised by the probate attorney.   After learning of the probate court's intent to deny the original petition without prejudice via the Internet, Ms. Rush chose not to ask the probate court to recall the matter and opted to file a new petition 70 days later.   The probate court concluded, “[Ms. Rush] has not provided the Court with any facts or law that would relieve her of the 120–[day] bar to prosecution of the petition to revoke a will admitted to probate.”   The probate court denied the second revocation petition as untimely.   This timely appeal followed.


A. The Absence Of A Reporter's Transcript Or A Suitable Substitute

No reporter's transcript or a suitable substitute of any hearing has been provided by Ms. Rush. We asked the parties to brief the issue of the failure of provide a report's transcript or a suitable transcript.  (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295;  In re Kathy P. (1979) 25 Cal.3d 91, 102.)   The parties believe no reporter's transcript is necessary.   We disagree.   A reporter's transcript or a suitable substitute is necessary for us to conduct judicious review particularly in a case where there are equitable based arguments concerning tolling, fraud and the effect of a without prejudice ruling.  (Walker v. Superior Court (1991) 53 Cal.3d 257, 273–274 [transfer order];  Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295–1296 [attorney fee motion hearing];  Ballard v. Uribe (1986) 41 Cal.3d 564, 574–575 (lead opn. of Grodin, J.) [new trial motion hearing];  In re Kathy P., supra, 25 Cal.3d at p. 102 [hearing to determine whether counsel was waived and the minor consented to informal adjudication];  Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1672 [transcript of judge's ruling on an instruction request];  Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447 [trial transcript when attorney fees sought];  Estate of Fain (1999) 75 Cal.App.4th 973, 992 [surcharge hearing];  Hodges v. Mark (1996) 49 Cal.App.4th 651, 657 [nonsuit motion where trial transcript not provided];  Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [monetary sanctions hearing];  Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532 [reporter's transcript fails to reflect content of special instructions];  Buckhart v. San Francisco Residential Rent etc.   Bd. (1988) 197 Cal.App.3d 1032, 1036 [hearing on Code Civ. Proc., § 1094.5 petition];  Sui v. Landi (1985) 163 Cal.App.3d 383, 385–386 [motion to dissolve preliminary injunction hearing];  Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 713–714 [demurrer hearing];  Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 71–73 [transcript of argument to the jury];  Ehman v. Moore (1963) 221 Cal.App.2d 460, 462 [failure to secure reporter's transcript or settled statement as to offers of proof];  Wetsel v. Garibaldi (1958) 159 Cal.App.2d 4, 10 [order confirming arbitration award].)   We have no basis for judiciously assessing the effect of arguments and rulings at the January 21, 2011 hearing or those prior to that date without a reporter's transcript or a suitable substitute.

B. The Merits

Our Supreme Court has set forth the standard of review we must apply in analyzing a demurrer as follows:  “On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled.   The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.  [Citations.]  The court does not, however, assume the truth of contentions, deductions or conclusions of law.  [Citation.]  The judgment must be affirmed ‘if any one of the several grounds of demurrer is well taken.  [Citations.]’  [Citation.]   However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory.  [Citation.]  And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.  [Citation.]”  (Aubry v. Tri–City Hospital Dist. (1992) 2 Cal.4th 962, 966–967.)

Section 8270 subdivision (a) provides:  “Within 120 days after a will is admitted to probate, any interested person, other than a party to a will contest and other than a person who had actual notice of a will contest in time to have joined in the contest, may petition the court to revoke the probate of the will.   The petition shall include objections setting forth written grounds of opposition.”   The 120–day time limit for filing a petition to revoke the probate of a will is jurisdictional.  (Estate of Sanders (1985) 40 Cal.3d 607, 613;  Wolfson v. Superior Court (1976) 60 Cal.App.3d 153, 160.)   If no timely contest is filed, the validity of the will is conclusively established.  (Estate of Casey (1982) 128 Cal.App.3d 867, 870;  Estate of Caruch (1956) 139 Cal.App.2d 178, 182.)

This case involves a statute of limitations issue.   There are special pleading standards in cases involving the statute of limitations.   If the defense is apparent on the face of the pleading, the facts showing the claim is timely must be pled with specificity.  (Gentry v. EBay, Inc. (2002) 99 Cal.App.4th 816, 824 [“Where the complaint's allegations or judicially noticeable facts reveal the existence of an affirmative defense, the ‘plaintiff must “plead around” the defense, by alleging specific facts that would avoid the apparent defense” ’];  Spray, Gould & Bowers v. Associated Internat.   Ins. Co. (1999) 71 Cal.App.4th 1260, 1266, fn.   4 [“Of course when a complaint shows on its face (or with the help of judicially noticed facts) that a pleaded cause of action is apparently barred by the statute of limitations, plaintiff must plead facts which show an excuse, tolling, or other basis for avoiding the statutory bar ․”].)  The second petition contains no specific tolling or estoppel allegations and hence on its face is untimely.

The sole remaining issue is whether the second petition can be amended.   As noted, Ms. Rush was served with the petition to probate the will on June 18, 2009.   The address at which she was served is the same as that identified on both of Ms. Rush's petitions.   The executor's petition to probate the will was granted on October 23, 2009.   Ms. Rush did not file her first revocation petition until February 10, 2010, 110 days after the order probating the will was entered on October 23, 2009.

The first petition was denied without prejudice on July 9, 2010.   This was 260 days after the petition to probate the will was granted.   There are limited circumstances where a statute of limitations can be equitably tolled when a litigant is pursuing the identical remedy in the same forum.  (Wood v. Elling Corp. (1977) 20 Cal.3d 353, 361;  Bollinger v. National Fire Ins. Co. of Hartford (1944) 25 Cal.2d 399, 410–411.)   Although these equitable tolling principles may very well be inapplicable to this case, we assume for purposes of argument that while the first petition was pending between February 10 and July 9, 2010, the section 8270, subdivision (a) 120–day statute of limitations was tolled.

After the first petition was denied without prejudice on July 9, 2010, Ms. Rush had 10 more days to file a new petition;  that is until July 19, 2010.   (Lantzy v. Centrex Homes (2003) 31 Cal.4th 363, 370;  see United States v. Ibarra (1991) 502 U.S. 1, 4.) But the second petition was not filed until September 17, 2010.   Thus, if equitable tolling is available to Ms. Rush, she waited more than the 10 remaining days after the tolling period ended to file the second petition.   Hence, she is unable to allege facts indicating her second petition was timely—no amendment is possible.

Several of Ms. Rush's arguments warrant brief comment.   She argues that she was entitled to amend the first petition and secure the benefit of the relation back doctrine.  (Estate of Russell (1922) 189 Cal. 759, 774–775;  Estate of Munfrey (1943) 61 Cal.App.2d 565, 569.)   However, in this case, the probate court did not have a demurrer or motion to strike before it on July 9, 2010.   The case was before the probate court for a hearing which was a trial on the merits.   The probate court did not sustain a demurrer or grant a motion to strike with leave to amend.   Nor did Ms. Rush ever seek leave to amend.   In fact, her counsel did not even attend the July 9, 2010 hearing.   This is not an amendment case.

No doubt, the probate court denied the petition without prejudice.   (Chambreau v. Coughlan (1968) 263 Cal.App.2d 712, 718 [“The term ‘without prejudice,’ in its general adaptation, means that there is no decision of the controversy on its merits, and leaves the whole subject in litigation as much open to another application as if no suit had ever been brought”];  accord Williams v. City of Oakland (1973) 30 Cal.App.3d 64, 69.)   But the probate court, in denying the first petition “without prejudice,” had no authority to extend the statute of limitations.   In any event, what the probate court intended by this order is altogether unclear as Ms. Rush has not provided a reporter's transcript or a suitable substitute of any proceeding.

Finally, inherent in California's equitable tolling jurisprudence, as it relates potentially to this case, is a requirement that the plaintiff act with diligence.  (Tannhauser v. Adams (1947) 31 Cal.2d 169, 177–178;  Bollinger v. National Fire Ins. Co. of Hartford, supra, 25 Cal.2d at pp. 410–411.)   Here, after the first petition was denied on July 9, 2010, Ms. Rush's counsel indicated he intended to file a second petition forthwith.   But no petition was filed until September 17, 2010.   And Ms. Rush's counsel was advised on March 26, 2010, that certain items had to be provided before the probate court could resolve the dispute.   The hearing was continued until May 7 and later to July 9, 2010.   The matters that needed to be provided and which were listed in the probate attorney's notes on March 26 were not resolved by July 9, 2010.   Ms. Rush's counsel was not even present at the July 9, 2010 hearing.   Assuming an argument can be made that equitable tolling jurisprudence can apply to extend the section 8270 subdivision (a) statute of limitations, the uncontradicted evidence is that the diligence element is not present.


The order sustaining the demurrer is affirmed.   Sheila Hope Thompson, as the executor of the estate of Robert Lee Rush, is recover her costs incurred on appeal from Kacey M. Rush.


I concur:

MOSK, J., Concurring

I concur.

Generally, a reporter's transcript is not necessary for review of a decision granting a demurrer because we review that decision de novo.


FN1. All further statutory references are to the Probate Code..  FN1. All further statutory references are to the Probate Code.