Austin v. Bojorquez CA4/2

Opinion

Filed 9/16/26 Austin v. Bojorquez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

MORGAN AUSTIN, as Trustee, etc., Plaintiff and Respondent, E086033 v. (Super.Ct.No. PRIN2100516)

LINDA BOJORQUEZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Russell M. Velasquez, Judge. Affirmed.

The Walker Law Firm, and Joseph A. Walker for Appellant.

No appearance for Respondent.

This appeal arises from a dispute between siblings over a trust created by their now-deceased mother. Defendant and appellant Linda Bojorquez challenges the trial court’s ruling that her untimely probate petition alleging financial elder abuse by her 1 1 brother, plaintiff and respondent Morgan Austin, triggered the trust’s no contest clause.

We affirm.

I. FACTS

In 2008, Sharon Miller executed the trust at issue, the “Fourth Amended and Restated Sharon Lane Miller Revocable Trust” (the trust). The trust identifies Bojorquez (under her previous last name) and Austin as Miller’s living children. The trust was amended in August 2019 and again in November 2019. Miller personally signed the August 2019 amendment. Austin signed the November 2019 amendment for Miller as authorized by a durable power of attorney she executed in October 2019. Miller died three days after the November 2019 amendment. Under the trust as amended, Austin is the successor trustee.

In January 2020, Austin served Bojorquez with the notice required by Probate Code, section 16061.7, informing her that she “‘may not bring an action to contest the trust more than 120 days from the date this notification by the trustee is served upon 2 you.’” (Prob. Code , § 16061.7, subd. (h); see id., § 16061.8 [120-day limitations period].) Bojorquez did not contest the validity of either the August 2019 or the November 2019 amendments to the trust during that 120-day period.

1 Bojorquez’s son Ethan Widera is a beneficiary of the trust and he is named as an appellant in the notice of appeal, although he was not party to Bojorquez’s petition. He presents no arguments separate from Bojorquez’s, and he is not a party to this appeal because he was not a party in trial court. 2 Undesignated statutory references are to the Probate Code.

2 In April 2021, Bojorquez filed a verified trust petition alleging six causes of action. These included a cause of action for financial elder abuse by Austin, alleging that he used undue influence over Miller to put the August 2019 and November 2019 amendments in place and thereby take property that otherwise would have gone to Bojorquez. Bojorquez requested an order deeming Austin to have predeceased Miller for purposes of trust distribution and punitive damages.

Austin’s demurrer to Bojorquez’s April 2021 petition was overruled, and after extended settlement efforts failed, trial was scheduled for October 2023. Ten days before trial, however, Bojorquez requested her petition be dismissed without prejudice. The trial court granted the request.

In November 2023, Bojorquez filed a new petition seeking a trust accounting. In May 2024, the court ordered Austin to file a “formal code compliant accounting,” and Austin did so on September 20, 2024.

Meanwhile, however, in March 2024, Austin petitioned for an order finding 3 Bojorquez had triggered the trust’s no contest clause by filing her April 2021 petition.

Austin argued Bojorquez’s April 2021 petition was a direct contest filed without probable 3 This petition’s full title is “Verified Petition to Find Linda Bojorquez in Violation of the No Contest Clause of the Sharon L. Miller Trust and to Ascertain Beneficiaries and Instruct Trustee Accordingly.”

3 cause, so the trust’s no contest clause applied to her, and she should be deemed to have 4 predeceased Miller without issue for the purpose of distributing trust assets.

After several rounds of briefing, the trial court took Austin’s petition under submission in February 2025. It issued a written ruling in March 2025. The court granted the petition “with respect to its request for an order applying the trust’s no contest clause to Bojorquez.” The court declined Austin’s request for instructions on how to administer trust funds in light of that conclusion because “no substantive discussion on the issue” was included in Austin’s petition. The court noted Bojorquez’s counsel had argued that she would be “fully disinherited if the no contest clause is applied to her,” but found that was a “question for another day, if ever.”

4 The trust’s no contest clause, section 8.2, provides: “If any beneficiary under this instrument . . . directly or indirectly contests this instrument, any amendment to this instrument, or the will of the settlor in whole or in part, or opposes, objects to, or seeks to invalidate any of the provisions of this instrument or the will of the settlor, or seeks to succeed to any part of the estate of the settlor other than in the manner specified in this instrument . . . then the right of that person to take any interest given to him or her by this instrument or any amendment . . . shall be void, and any gift or other interest in the trust property to which the beneficiary would otherwise have been entitled shall pass as if he or she had predeceased the settlor without issue. Settlor specifically exempts petitions under . . . Probate Code [s]ection 850 et seq. from the effect of this clause.” The August 2019 amendment refers to the trust’s no contest clause: “As settlor of the trusts created by this amendment and the declaration of trust, settlor approves this declaration of trust and amendment in all particulars, including but not limited to the no contest clause provisions contained herein . . . .” The November 2019 amendment does so with more specificity: “As trustee of the trusts created by this amendment and the declaration of trust, I approve this declaration of trust and amendment in all particulars, including but not limited to the no contest clause provision contained in Section 8.2 of the trust . . . .” We will return to this difference below.

4 II. DISCUSSION The trial court’s order relies on Meiri v. Shamtoubi (2022) 81 Cal.App.5th 606 (Meiri) and Key v. Tyler (2024) 102 Cal.App.5th 365 (Key). We agree that these are useful cases, which correctly state the law and apply here. “‘An in terrorem or no contest clause in a trust instrument “essentially acts as a disinheritance device, i.e., if a beneficiary contests or seeks to impair or invalidate the trust instrument or its provisions, the beneficiary will be disinherited and thus may not take the gift or devise provided under the instrument.”’” (Meiri, supra, 81 Cal.App.5th at p. 613.) “‘No contest clauses, whether in wills or trusts, have long been held valid in California.’” (Ibid.)

A no contest clause can only be enforced as to a “protected instrument,” a term statutorily defined to include “only two categories of documents: (1) the ‘instrument that contains the no contest clause,’ and (2) an instrument ‘that is in existence on the date that the instrument containing the no contest clause is executed and is expressly identified in the no contest clause.’ (§ 21310, subd. (e).)” (Key, supra, 102 Cal.App.5th at p. 379.)

Thus, a no contest clause in a protected instrument, such as Miller’s 2008 trust, does not apply to later amendments “unless the amendment specifically refers to the no contest clause.” (Aviles v. Swearingen (2017) 16 Cal.App.5th 485, 491.)

“‘Under current law, a no contest clause is enforceable against a “direct contest that is brought without probable cause.” (§ 21311, subd. (a)(1).)’ [Citation.] A ‘“[c]ontest”’ is 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.’ (§ 21310, subd.

5 (a).) A ‘“[d]irect contest” . . . alleges the invalidity of a protected instrument or one or more of its terms, based on one or more of’ certain enumerated grounds, including ‘[l]ack of capacity’ and ‘[m]enace, duress, fraud, or undue influence.’ (§ 21310, subd. (b)(3)- (4).)” (Meiri, supra, 81 Cal.App.5th at p. 614; see Key, supra, 102 Cal.App.5th at pp.

378-379 [contest that “would have nullified or thwarted” provisions of the protected instrument by changing the contemplated “distribution scheme[]” is a direct contest of the protected instrument].)

“Additionally, ‘[f]or the purposes of this section, probable cause exists’ where ‘at the time of filing a contest, the facts known to the contestant would cause a reasonable person to believe that there is a reasonable likelihood that the requested relief will be granted after an opportunity for further investigation or discovery.’ (§ 21311, subd. (b).)”

(Meiri, supra, 81 Cal.App.5th at p. 614.) In Meiri, the appellate court held that the litigation at issue, seeking to void an amendment and restatement of a trust as procured through undue influence and fraud, was a direct contest in the meaning of section 21311.

(Meiri, supra, at p. 615.) The direct contest lacked probable cause because it was filed after the expiration of the 120-day period allowed by sections 16061.7 and 16061.8.

(Meiri, at p. 617 [lack of probable cause arises from “any legally sufficient bar to relief— whether procedural (e.g., a statute of limitations defect) or substantive”].)

“In the absence of disputed facts, we review a court’s application of a no contest clause de novo.” (Meiri, supra, 81 Cal.App.5th at p. 614.) De novo review also applies to “the legal question of whether a statute of limitations applies,” including the 120-day 6 limitations period applicable to trust contests. (Ibid.; see Straley v. Gamble (2013) 217 Cal.App.4th 533, 536 [applying de novo review to period for bringing an action to contest a trust under §§ 16061.7 and 16061.8].)

Here, there is no question Bojorquez’s April 2021 petition was filed after the 120- day limitations period that started running when Austin served her with notice per section 16061.7. In her petition, she “admits that at no time during the 120 day period did she contest the validity of the August 2019 Amendment nor the November 2019 Amendment, and that time to contest such documents has passed.” This procedural defect of being late-filed renders the April 2021 petition lacking in probable cause. (Meiri, supra, 81 Cal.App.5th at p. 614.) The alleged substantive defects in those amendments, to which Bojorquez devotes most of her briefing in this appeal, are thus irrelevant.

One factual distinction from Meiri is that Bojorquez did not ask that the trust’s amendments be declared void in their entirety. This is, however, a distinction without a difference. Bojorquez’s April 2021 petition, if granted, would have had the effect of revoking certain of their provisions by deeming Austin to have legally predeceased Miller, with the effect that certain property would go to Bojorquez instead. That suffices to make it a direct contest to the amendments. (See Key, supra, 102 Cal.App.5th at pp.

378-379.)

Bojorquez suggests that Meiri should not apply here because the opinion issued while this litigation was pending and after her April 2021 petition. It is not apparent why this might be so, however, even under the authority she cites. (See Newman v. Emerson 7 Radio Corp. (1989) 48 Cal.3d 973, 978 [“The general rule that judicial decisions are given retroactive effect is basic in our legal tradition”].) Although Meiri issued in 2022, it applies a “statutory scheme” that took effect in 2010. (Meiri, supra, 81 Cal.App.5th at p. 614, fn. 6.) We discern no reason why Meiri should not be applied to the petition at issue here which, like the one examined in Meiri itself, was filed long after that statutory scheme took effect. Bojorquez offers no specific argument in support of a different conclusion.

Citing Aviles v. Swearingen, supra, 16 Cal.App.5th at p. 491 (Aviles), Bojorquez argues the August 2019 amendment is not a “protected instrument” because it does not incorporate the trust’s no contest provision with sufficient specificity to satisfy section 21310, subdivision (e). Aviles holds that for a trust’s no contest clause to apply to an amendment, the amendment must “specifically refer[]” to the trust’s no contest clause.

(Aviles, at p. 491.) Even if accepted, however, this argument would be insufficient to 5 change the result here. Bojorquez makes no argument that the November 2019 amendment is insufficiently specific when it refers to “the no contest clause provision contained in Section 8.2 of the trust.” And, under Key, the “full scope of the forfeitures identified” in a no contest clause may be enforced where both protected and non- 5 The amendment at issue in Aviles was more general than the August 2019 amendment’s, incorporating by reference all the unchanged provisions of the previous instrument without specifying the no contest clause of the previous instrument either by function or by section. (Aviles, supra, 16 Cal.App.5th at p. 489 [“‘These Articles once included, and along with any Articles not amended, shall result in the Third Amendment and Restatement’”].) The August 2019 amendment, in contrast, referenced “the no contest clause provisions contained herein.”

8 protected instruments are challenged in a direct contest that lacks probable cause. (Key, supra, 102 Cal.App.5th at p. 379; see id. at p. 380 [“unlike the legislative restrictions on the types of contests that can support application of a no contest clause, if a prohibited contest does occur the governing statutes do not place any restriction on the scope of the forfeiture that may result”]; see also id. at p. 380, fn. 6 [“This case would be similar to Aviles if, for example, Tyler had directly contested only the [unprotected] 2003 Amendment. But her attack on the Trust was not so limited”].) Thus, even if we assume the August 2019 amendment is not a protected instrument, Bojorquez has not shown the trial court’s conclusion about the no contest clause applying to her was incorrect.

In short, Bojorquez’s April 2021 petition was a direct contest to a protected instrument, specifically, the November 2019 amendment, and arguably the August 2019 amendment as well. That direct contest lacked probable cause because it was not filed within the applicable 120-day limitations period. The trial court therefore correctly ruled the trust’s no contest clause applied to Bojorquez.

9 III. DISPOSITION The order is affirmed. No award of costs is appropriate because respondent prevailed without appearing in this appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL ______________________________________________________________________________________________________________________________________________________________________

J.

We concur:

RAMIREZ ______________________________________________________________________________________________________________________________________________________________________ P. J.

CODRINGTON ______________________________________________________________________________________________________________________________________________________________________

J.