Tabb v. Wood CA2/5

California Court of Appeal Dec 14, 2023 No. B322931Unpublished

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Holding. The court held that a trustee's failure to include a telephone number in a Probate Code section 16061.7 notice does not invalidate the notice or extend the statutory contest deadline unless the petitioner demonstrates prejudice. Because the petitioner was already in contact with the trustee's counsel and had obtained the trust instrument, the omission was harmless.

Issues

Whether a Probate Code section 16061.7 notice is invalid for failing to include the trustee's telephone number.
Whether a petitioner must demonstrate prejudice to excuse noncompliance with the 120-day trust contest deadline due to a defect in the trustee's notice.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Tabb has not shown he was prejudiced by the absence of a telephone number for Wood in the notice.”

“Germino accordingly holds that noncompliance with subdivision (g) falls into the class of cases where a “statute does not require a particular form of notice” such that the “cases consistently hold that courts will look to the issue of prejudice”

Filed 12/14/23 Tabb v. Wood CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

CHRIS DAVID TABB, B322931

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. 21STPB07970) v.

MALEE WOOD, as Trustee, etc.,

Defendant and Respondent.

APPEAL from an order of the Superior Court of Los Angeles County, Gus T. May, Judge. Affirmed. Law Office of R. Chris Lim and R. Chris Lim for Plaintiff and Appellant. Matthew C. Brown for Defendant and Respondent.

When a trust becomes irrevocable, Probate Code section 16061.7 requires the trustee to serve a notice advising, among other things, that any contest to the trust must be filed within 120 days.1 Plaintiff and appellant Chris David Tabb (Tabb) filed a petition contesting the Jerald Leroy Tabb Living Trust dated October 1, 2020, (the Trust) well beyond that deadline. When confronted with the timeliness problem, he argued the petition was not time barred because the trustee’s section 16061.7 notice was invalid because it did not include the trustee’s telephone number. The trial court rejected this argument and granted a demurrer to the contest petition without leave to amend. We consider the correctness of this ruling, which includes the trial court’s finding that Tabb had not been prejudiced by the asserted deficiency in the section 16061.7 notice.

I. BACKGROUND Tabb’s father, Jerald Tabb (Jerald), created the Trust in 2020. The terms of the trust provided that, at Jerald’s death, the entirety of the Trust property would be distributed to defendant and respondent Malee Wood (Wood)—Jerald’s ex-wife and the person named as the successor trustee of the trust. Jerald died in January 2021. The following month, Wood’s attorney served Tabb with a section 16061.7 notice. The one-page document included the name of the settlor and the date the trust was executed, the name of the trustee (Wood) and her mailing address (her lawyer’s law office), and the address of the principal place of

Tabb v. Wood CA2/5

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

CHRIS DAVID TABB, B322931

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

RUBIN, P. J.

KIM, J.

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