NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 15PR00041)
Plaintiff Lisa Modawell and her sister, defendant Courtney Depew, were allegedly beneficiaries of their grandmother's trusts. Depew was also allegedly the trustee of the trusts. Modawell filed a petition in the probate court for breach of trust against Depew, and Depew filed an answer. The court treated Depew's answer as a demurrer, sustained the demurrer on the grounds that Modawell's petition was barred by the statute of limitations and by the doctrine of laches, and filed a judgment dismissing Modawell's petition with prejudice.
On appeal, we understand Modawell to contend that the judgment should be reversed because the probate court erred by: (1) having a court staff member contact Depew after she failed to appear for several hearings, (2) treating Depew's answer as a demurrer, and (3) sustaining the demurrer based on the statute of limitations and the doctrine of laches.
For reasons that we will explain, we will reverse the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Modawell's Petitions
On October 29, 2015, Modawell filed a petition in the probate court seeking redress for breach of trust (Prob. Code, § 17200, subd. (b)(12)) among other relief against Depew and others. Modawell filed a second petition on January 4, 2016, and an amendment with further allegations on May 27, 2016. Our summary of the facts is drawn from the allegations in these pleadings and the attached exhibits, since in reviewing a judgment dismissing a pleading after the sustaining of a demurrer we assume the truth of the properly pleaded factual allegations. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando); Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 225, fn. 1. (Rutherford Holdings).)
All further statutory references are to the Probate Code.
Modawell and Depew's father, Richard Trigueros, died in 1992, and their paternal grandmother, Isabel Trigueros, died in 2002. Both sisters were beneficiaries of three trusts that were created by their paternal grandmother in 1989. The three trusts were identical except that each trust contained a different property located in Santa Cruz County. Depew was the trustee of each trust.
Modawell alleged that she did not learn about the existence of the three trusts and the breach of trust by her sister, Depew, until October 30, 2012. On that date, Modawell was at the Santa Cruz County Recorder's Office searching for information regarding her own divorce. She discovered quitclaim deeds for the three Santa Cruz County properties that she knew had once been owned by her family.
Modawell's pleadings included copies of the quitclaim deeds. The quitclaim deeds indicated that the properties had been in revocable trusts of the grandmother Isabel Trigueros, that Depew was the trustee of the trusts, that Depew and Modawell were beneficiaries of the trusts, that any interest in the properties as described by the trusts was being terminated, and that the properties were quitclaimed to the grandmother. The dates on the quitclaim deeds were within a period of months before and after their father's death in November 1992.
Modawell alleged that her signatures on the quitclaim deeds were forged, and that the notary stamps were fake. She believed her grandmother's signatures were also forged. According to Modawell, her grandmother was diagnosed with dementia in 1990, and her grandmother's condition progressively worsened every year thereafter. By the time of the quitclaim deeds, her grandmother could no longer manage her affairs or "interpret or conceptualize this form of documentation." Modawell alleged that, at the time the deeds were executed, Depew was a real estate agent, loan processor, and notary.
Modawell alleged that prior to discovering the quitclaim deeds, she had not been aware of any trust that she was a beneficiary to, and specifically she had not been aware of her grandmother's trusts or of her own interests as a beneficiary in the trust properties. "For reasons unknown [Modawell] was never informed about the trusts or her ben[e]ficial interest in the three trust properties."
Modawell spent the rest of the afternoon on October 30, 2012, researching public records at the county recorder's office and found her grandmother's trusts. The grandmother's trusts had been recorded in Santa Cruz County in May of 1989.
Modawell's pleadings included a copy of one of the trust documents. The grandmother was the settlor and income beneficiary of the trust, Depew was the trustee, and Modawell was the successor trustee. The "primary purpose" of the trust was to provide for the grandmother's support. Upon the grandmother's death, the remainder of the trust property was to be distributed to the "Principle Beneficiaries." Modawell and Depew were each "[t]he remainderman, to receive the principle of this trust on distribution." The trust provided that the trustee could not sell the property during the grandmother's life without her written consent. The trust further provided that the settlor, the grandmother, had the power to "withdraw trust property (to include real property) and to amend or revoke the trust and require the Trustee to transfer to him any of the trust property which has been conveyed to the Trustee. The trust shall become irrevocable upon the death of the Settlor."
Modawell had lived at one of the trust properties with her father for a period until shortly after her father died in November 1992. Prior to her father's death, he had managed Isabel Trigueros's financial affairs and managed and maintained all three Santa Cruz County properties. Shortly after his death, Depew told Modawell that their father's brother would be handling their grandmother's financial affairs. Depew further indicated that the other two Santa Cruz County properties had "recently both been lost in foreclosure," that the property where Modawell was staying "was also at risk of the same fate," and that Depew, who was a licensed real estate agent, "had been given the 'task' to sell it." Modawell was aware that their father's illness prior to his death had left him unable to manage and maintain the three properties, and her father had previously told her that the other two properties were at risk of falling into foreclosure. Modawell thus moved out of the third property in December 1992, with the belief that the property was falling into foreclosure and needed to be sold.
However, with the discovery of the trusts and the purported quitclaim deeds, which were "used as trust revocation documents," Modawell realized that "everything" she had been told by her sister after the death of their father "were all lies." Modawell wrote a letter to her sister, asking for an explanation about the information Modawell had discovered. Depew responded that she did not know anything about the trusts, and that Modawell was "delusional."
In her petition filed in the probate court, Modawell alleged that her grandmother never received disbursements from the trusts and "suffer[ed]" in the last years of her life in a "substandard" facility until she passed away in 2002. Modawell also alleged that Depew did not "step in and manage and administer the three trust properties when [their father fell] ill" and instead "brokered" the sale of the properties for less than their value. Modawell further alleged that Depew, Depew's husband, and/or their businesses were involved in the sales of the properties and financially benefited from subsequent transactions involving the properties. Modawell also alleged that Depew committed forgery and fraud, that she conspired to embezzle assets out of the trusts, that she intentionally concealed Modawell's interests under the trusts, and that she breached her fiduciary duties.
B. The June 2016 Hearing
The probate court held a hearing on June 30, 2016, with both Modawell and Depew appearing as self-represented litigants. Depew had not yet filed a response to Modawell's petitions, but she appeared at the hearing because, according to the probate court, the "probate secretary . . . called her and suggested it would be a good idea for her to come."
The probate court indicated that it had previously expressed concerns to Modawell that her claims "may be time barred." The court told Depew that there were "potential statute of limitations defenses which will probably need to be determined." The court explained that Depew needed to file an opposition to Modawell's petition, and that Modawell could file a reply. The court set the matter for a hearing on August 16, 2016.
C. Depew's Answer
On July 22, 2016, Depew filed an "[a]nswer" generally denying Modawell's allegations. In the answer, Depew stated that she "never acted as Trustee for [her] grandmother's estate at any time." Depew further stated that the quitclaim deeds were signed by all parties in front of commissioned notaries, and that she was not involved in the sale of the properties in any capacity.
Depew also alleged affirmative defenses, including that Modawell's pleading was "barred by the applicable statute of limitations." Depew alleged that Modawell had constructive notice because the trusts were recorded as public record in 1989, that Modawell had actual notice when she signed the quitclaim deeds describing the trusts and identifying her as a beneficiary, and that Modawell had discovery notice because she had copies of the trusts by at least September 20, 2012, which was outside the three-year limitations period.
D. Modawell's Reply
In reply, Modawell contended that Depew had acted as trustee, as reflected in various recorded documents that contained Depew's signature followed by the title " 'Trustee,' " and that Depew had been involved in the sale of trust property. Regarding the statute of limitations, Modawell reiterated that she first discovered her grandmother's trusts on October 30, 2012, and that her petition was timely filed within the three-year limitations period.
E. The August 2016 Hearing and the Probate Court's Ruling
Modawell did not appear at the August 16, 2016 hearing, and Depew appeared by telephone. The probate court stated that it was trying to determine whether it needed to set an evidentiary hearing to address the issues raised in Depew's answer. The court stated that, although Depew had not cited the Probate Code sections relating to her contention that the statute of limitations had expired, it appeared to the court that the pleadings on their face established that the statute of limitations barred Modawell's claims. The court stated that it was going to "step off the bench" and "do some further research."
After a brief period, the probate court stated that it was "[b]ack on the record." The court explained that it was going to treat Depew's answer as a demurrer. The court believed from the "face of the pleadings" by Modawell that her petition was "barred by the statute of limitations contained in the Probate Code which governs trust petitions." The court stated that "even assuming there was delayed discovery of the existence of the trust, the trustor grandmother died in 2002 and at that point in time [Modawell], the alleged beneficiary of the trust, was on notice that she had to take action to determine whether there was some estate plan or trust document. She failed to do anything until she filed the subject petition . . . ." The court concluded that the petition was "barred as a matter of law" and dismissed the petition with prejudice.
In a written order and judgment filed on August 29, 2016, the probate court stated that it treated Depew's answer as a demurrer for the purposes of the statute of limitations. The court explained that section 16460, subdivision (a)(2) provides for a three-year limitations period for claims of breach of trust, and that the statute of limitations begins to run when the beneficiary discovers or reasonably should have discovered the breach. The court determined, "[b]ased on the pleadings filed . . . and the allegations contained on the face of the Petition," the petition was barred by the statute of limitations and the doctrine of laches. The court stated that Modawell "knew that [her grandmother] died in 2002 and reasonably should have investigated whether she was entitled to an inheritance." The court dismissed the petition with prejudice.
Modawell filed a motion to vacate the judgment. Among other contentions, Modawell stated that she was unable to appear at the hearing on August 16, 2016, because she suffered a severe physical illness or condition starting the night before the hearing. By the time she reached the court by phone on August 16, 2016, the court had already issued its ruling. Depew filed opposition. After a hearing, the probate court denied the motion to vacate the judgment.
We understand Modawell to contend that the judgment should be reversed because the probate court erred by: (1) having a court staff member contact Depew after she failed to appear for several hearings, as that contact caused Depew to appear at the hearing on June 30, 2016, (2) treating Depew's answer as a demurrer, and (3) sustaining the demurrer based on the statute of limitations and the doctrine of laches. We will consider each contention in turn.
A. Court Staff Contact with Depew
Modawell filed an amendment to her petition on May 27, 2016, and the first page of the amendment indicated that a hearing would be held on June 30, 2016. At the June 30, 2016 hearing, the probate court raised the issue of whether Modawell filed a proof of service regarding service of the amendment on Depew. Modawell acknowledged that service of the amendment by the sheriff's office had been unsuccessful. Despite her unsuccessful attempt to have Depew served, Modawell remarked, "[B]ut here she is," in reference to Depew's presence at the June 30, 2016 hearing. The probate court responded, "She's here because she had contact with the probate secretary who called her and suggested it would be a good idea for her to come."
On appeal, we understand Modawell to contend that the contact by court staff with Depew regarding the upcoming June 30, 2016 hearing was an improper ex-parte communication by the court. Modawell argues that she was never given details of the communication, that court staff may have given Depew legal advice, and that the communication "change[d] [Depew's] decision to appear or not to appear."
Modawell fails to demonstrate that the communication was improper or that she was prejudiced by the communication. When the communication was disclosed at the hearing, Modawell did not object to the communication or inquire as to the content of the communication. The record indicates that the "probate secretary," apparently a court staff member, told Depew about the upcoming hearing. Generally, a telephone call between court personal and a party regarding scheduling or other purely administrative matters is not improper. (Blum v. Republic Bank (1999) 73 Cal.App.4th 245, 248-249.) There is no evidence in the record that the communication addressed the substance or merits of the case, as opposed to an administrative matter such as the date of an upcoming hearing. In addition, because Depew appeared at the hearing and acknowledged that she had obtained a copy of Modawell's most recently-filed papers, the court deemed her served effective that day. This saved Modawell the time and expense of trying to serve Depew.
B. Treating Depew's Answer as a Demurrer
Depew filed an answer to Modawell's amended petition. The answer alleged several affirmative defenses, including that Modawell's claims were barred by the statute of limitations. At the August 16, 2016 hearing on Modawell's petition, Modawell did not appear. The probate court proceeded to treat Depew's answer as a demurrer, and the court sustained the demurrer based on the statute of limitations and the doctrine of laches.
On appeal, we understand Modawell to contend that the probate court erred by treating the answer as a demurrer, particularly when there was no notice, no memorandum of points and authorities, and no future hearing date set so that each party could argue their issues "fairly." In response, we understand Depew to contend that the probate court properly treated her answer as a demurrer because (a) the court previously warned Modawell about the statute of limitations issue, and (b) Modawell was given the opportunity to file a reply brief to Depew's answer.
We determine that the probate court erred by treating Depew's answer as a demurrer without any notice or an adequate opportunity to respond. Depew's answer did not provide notice to Modawell that Depew was bringing a pleading challenge, and Depew did not file a memorandum of points and authorities in support of such a pleading challenge. (See Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 343 [the "principal purpose of the requirement to file and serve a notice of motion a specified number of days before the hearing . . . is to provide the opposing party adequate time to prepare an opposition"].) Further, as we will next explain, the probate court erred in sustaining the demurrer and dismissing Modawell's petition. (See Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1289 [to obtain a reversal based upon a procedural flaw such as inadequate notice, the appellant must demonstrate prejudice].)
C. Sustaining the Demurrer Based on the Statute of Limitations and the Doctrine of Laches
1. Standard of review
A demurrer does not "test the truth of the plaintiff's allegations or the accuracy with which he [or she] describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading. [Citation.]" (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213.) " '[T]he question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.' [Citation.]" (Id. at p. 214.)
On appeal from a judgment of dismissal after a demurrer is sustained, the standard of review is de novo. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42 (Committee for Green Foothills).) In performing our independent review of the pleading, we assume the truth of all facts properly pleaded by the plaintiff. (Schifando, supra, 31 Cal.4th at p. 1081.) " 'We also accept as true all facts that may be implied or inferred from those expressly alleged. [Citations.]' [Citation.]" (Guerrero v. Superior Court (2013) 213 Cal.App.4th 912, 925.) Further, "we give the complaint a reasonable interpretation, and read it in context." (Schifando, supra, at p. 1081.) We also consider facts appearing in any exhibits attached to the complaint. (Rutherford Holdings, supra, 223 Cal.App.4th at p. 225, fn. 1.)
2. Statute of limitations
" ' "A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar . . . to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]" [Citation.]' [Citation.]" (Committee for Green Foothills, supra, 48 Cal.4th at p. 42.)
The probate court in its written order relied on section 16460, subdivision (a)(2), which provides a three-year limitations period for a claim against a trustee for breach of trust. Specifically, this subdivision states that the claim is barred "unless a proceeding to assert the claim is commenced within three years after the beneficiary discovered, or reasonably should have discovered, the subject of the claim." (Ibid., italics added.)
Section 16460, subdivision (a)(2) "thus refers to the delayed discovery rule." (Quick v. Pearson (2010) 186 Cal.App.4th 371, 378 (Quick).) Under the delayed discovery rule, " ' "the plaintiff must plead and prove the facts showing: (a) Lack of knowledge. (b) Lack of means of obtaining knowledge (in the exercise of reasonable diligence the facts could not have been discovered at an earlier date). (c) How and when he [or she] did actually discover the fraud or mistake. Under this rule constructive or presumed notice or knowledge are equivalent to knowledge. So, when the plaintiff has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his [or her] investigation (such as public records or corporation books), the statute commences to run." [Citation.]' [Citation.]" (Ibid., italics omitted.)
In Quick, supra, 186 Cal.App.4th 371, the appellate court addressed the timeliness of a beneficiary's petition for breach of trust against a trustee, where the beneficiary was unaware of the existence of his grandfather's trust until about a year before the petition was filed. (Id. at p. 375.) The beneficiary was born in 1965, but he did not learn the identity of his natural father until 1989. (Id. at p. 374.) Much later, in 2007, the beneficiary learned that his grandfather, who had died in 1971, had a trust for his grandchildren. (Id. at pp. 373, 375.) The beneficiary also learned that the trustee had told the other grandchildren not to tell him about the trust. (Id. at p. 375.) The beneficiary filed a petition against the trustee in 2008, alleging that the trustee failed to notify him that he was a beneficiary and failed to distribute his share of the trust. (Ibid.)
The appellate court concluded that the petition was timely. (Quick, supra, 186 Cal.App.4th at p. 380.) The court explained that nothing in the beneficiary's "petition suggests [he] became aware of facts that would have put a reasonable person on notice of the existence of the trust earlier than 2007 when [he] was advised of the trust's existence by [one of the other grandchildren]." (Id. at p. 379; see id. at p. 375.) The court specifically determined that the beneficiary's earlier "discovery of the identity of his natural father did not put [him] on notice he might be entitled to share in the remainder of a trust established by his grandfather." (Id. at p. 379.)
In this case, Modawell filed her original petition in the probate court on October 29, 2015, which is within three years of October 30, 2012, the date on which she conducted the public records search that turned up the trust documents. Nothing in Modawell's original petition or amendments thereto "suggests [she] became aware of facts that would have put a reasonable person on notice of the existence of [her grandmother's] trust[s] earlier than" October 30, 2012, when she was conducting an unrelated public records search at the county recorder's office. (Quick, supra, 186 Cal.App.4th at p. 379.) Modawell alleged that, prior to this date, she had not been aware of any trust to which she was a beneficiary.
Modawell's knowledge of her grandmother's death in 2002 did not, by itself, put Modawell on notice that her grandmother might have a trust, let alone put Modawell on notice that she might be entitled to a share of a trust established by her grandmother. (Quick, supra, 186 Cal.App.4th at p. 379; see Noggle v. Bank of America (1999) 70 Cal.App.4th 853, 860 [cause of action accrues when the beneficiary "had the required knowledge concerning the trusts in which [the beneficiary] had an interest"].)
Likewise, Modawell's knowledge that her grandmother owned various Santa Cruz County properties for a period did not put Modawell on notice that the trusts existed, or that the properties were in a trust. According to Modawell's allegations and the exhibits attached to her petitions, the trusts were recorded in connection with the properties being placed in the trusts, and thus the trusts could be discovered by conducting a public records search concerning the properties. Documents in the public record are considered " ' "open to . . . investigation" ' " and " ' "equivalent to knowledge" ' " by the plaintiff for purposes of commencing the running of the statute of limitations. (Quick, supra, 186 Cal.App.4th 378.) However, there are no allegations suggesting that Modawell reasonably should have investigated the public records concerning the Santa Cruz County properties any earlier than she did. (See Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 353 [appellate court "decline[d] to impose on [a bank] a duty to continually monitor all public records to determine whether it may have a cause of action"]; see id. at p. 352.) Modawell's allegations indicate that all three Santa Cruz County properties were disposed of approximately 10 years before her grandmother's death. There are no allegations to suggest that Modawell reasonably should have questioned or investigated the circumstances of the disposition of these properties either before, or upon, her grandmother's death to determine whether the properties were in a trust or whether she was entitled to some share of the properties. Modawell had been told by Depew that two of the properties had been lost in foreclosure, and that the third property was at risk of the same fate and needed to be sold. There are no allegations to suggest that Modawell reasonably should have doubted her sister's statements at the time.
Depew contends that Modawell believed the sisters had been wrongfully denied an inheritance from their grandmother by at least 2010. In support of this contention, Depew cites to a communication between the sisters in 2010, in which Modawell wrote to Depew: "The inheritance from Grandma's estate that was stolen from us," and "[W]e were robbed." Modawell indicated to Depew that she had "already talked to a bunch" of attorneys. Modawell further stated to Depew: "Grandma's estate just with . . . the two SF houses alone would have been close to 1 million in Real Property no telling how much else she had . . . . She made a lot of money with Dad all those years they were buying and selling houses. . . . There are very strict laws and codes in each state how direct heirs split up estates and in what order, also whatever was written in the will really means nothing unless it specifically says [Modawell] and [Depew] are not to recieve [sic] any part of it, . . . [¶] We have a claim on a whole lot of money . . . . [I]t has been a few years since I got the first clues of all this and talked to lawyers about it and read up on the Probate Law. . . . I need to know . . . you will help me . . . ."
We are not persuaded that this written communication by Modawell to Depew indicates that Modawell discovered, or reasonably should have discovered (§ 16460, subd. (a)(2)), the existence of the grandmother's three trusts regarding the Santa Cruz County properties earlier than she did. To the contrary, it appears from the communication that the wrongdoing Modawell suspected involved other people, was related to the grandmother's will, and involved San Francisco property or other assets that were part of the grandmother's estate at the time of her death. Depew does not identify anything in the communication indicating that Depew knew at that point, or reasonably should have discovered, there was wrongdoing involving the Santa Cruz County properties that had been disposed of a decade prior to the grandmother's death, or otherwise reasonably should have discovered the grandmother's trusts concerning the Santa Cruz County properties. Moreover, the communication reflects that Modawell did not suspect any wrongdoing by Depew, as Modawell was trying to enlist Depew's help.
In sum, it does not " ' "clearly and affirmatively" ' " appear on the face of Modawell's petition (including the amendments and the exhibits attached thereto) that the petition is time-barred. (Committee for Green Foothills, supra, 48 Cal.4th at p. 42.) None of the allegations indicate that Modawell reasonably should have searched Santa Cruz County public records, which disclosed the existence of the trusts, earlier than she did, or that she otherwise "reasonably should have discovered" the existence of the trusts earlier. (§ 16460, subd. (a)(2).) We therefore conclude that the probate court erred by sustaining a demurrer to Modawell's petition on statute of limitations grounds.
3. Doctrine of laches
Although it does not appear from the record that any party raised the issue of laches, the probate court also sustained the demurrer to Modawell's petition based on the doctrine of laches. On appeal, we understand Modawell to contend that the doctrine of laches does not apply because there was no showing that Depew was prejudiced from the "late" filing of Modawell's petition, and Depew's "own 'unclean hands' " prevents application of the doctrine. In response, Depew contends that Modawell's delay in filing her petition was "unreasonable and prejudicial," and that Depew "should not be put to the burden of trying to prove the legitimacy of the deeds and sales decades after they occurred."
" ' "The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay." [Citation.]' [Citation.] Any delay is measured from the time the plaintiff knew (or should have known) about the alleged claim. [Citation.] The prejudice may be factual in nature or compromise the presentation of a defense. [Citation.] 'Prejudice is never presumed; rather it must be affirmatively demonstrated by the defendant in order to sustain his [or her] burdens of proof and the production of evidence on the issue.' [Citation.]" (Drake v. Pinkham (2013) 217 Cal.App.4th 400, 406.) In this case, Depew did not assert the doctrine of laches in her answer, let alone allege that she was prejudiced by a delay in the filing of Modawell's petition.
Moreover, laches is an equitable doctrine, and "a party who seeks equity must also do equity. ' "The unclean hands doctrine 'closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief.' " [Citation.]' [Citations.]" (Quick, supra, 186 Cal.App.4th at p. 380.) In Quick, the allegation that the trustee told the other beneficiaries of the trust not to mention the existence of the trust to one of the beneficiaries was "a sufficient allegation of unclean hands such that [the trustee's] claim for equitable relief in the form of laches cannot be resolved against [the beneficiary] on demurrer." (Ibid.) In this case, Modawell alleged that, even after she discovered the existence of the trusts and the quitclaim deeds containing Depew's signature as trustee, Depew denied knowing anything about the trusts and called Modawell "delusional." Factual issues exist as to whether Depew was the trustee of their grandmother's trusts, whether Depew hid that fact from Modawell, and whether Depew engaged in improper conduct in connection with the trusts and the disposition of the Santa Cruz County properties. Based on Modawell's allegations and these factual issues, the issue of laches "cannot be resolved against [Modawell] on demurrer." (Ibid.)
Accordingly, the probate court erred by sustaining a demurrer to Modawell's petition based on the statute of limitations and the doctrine of laches. Therefore, the judgment of dismissal must be reversed.
The judgment is reversed. The probate court is directed to vacate its order sustaining the demurrer to Lisa Modawell's petition. The parties shall bear their own costs on appeal.
BAMATTRE-MANOUKIAN, ACTING P.J. WE CONCUR: /s/_________
MIHARA, J. /s/_________