Beam v. Hardin CA2/4 ( 2023 )

Filed 3/2/23 Beam v. Hardin CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
TREVOR BEAM, B316424
Plaintiff and Appellant, Los Angeles County
Super. Ct. No.
v. 21STPB00486
TERRENCE HARDIN,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, C. Edward Simpson, Judge. Reversed.
Andrew Post for Plaintiff and Appellant.
Paul Libis for Defendant and Respondent.
INTRODUCTION
In January 2021, Trevor Beam, a beneficiary of the Anne R.
Holland Revocable Separate Property Trust (the Trust), filed a
petition in the probate court asserting trustee Terrence Hardin
breached his fiduciary duties while handling Trust affairs
between February 2013 and November 2017. Hardin filed a
request to dismiss the petition, arguing, among other things,
Beam’s claims were barred by the statute of limitations.
Following a hearing, the probate court determined the petition
was time-barred and dismissed it without leave to amend.
On appeal, Beam contends the probate court erred by
determining his petition was time-barred because Emergency
rule 9, enacted by the Judicial Council of California in response
to the COVID-19 pandemic, tolled the statute of limitations
governing his claims. In response, Hardin argues: (1) we lack
jurisdiction to consider this appeal; (2) Beam forfeited his tolling
argument by failing to raise it in the probate court; (3)
Emergency rule 9 cannot extend the statute of limitations; and
(4) Beam failed to show prejudicial error requiring reversal.
As discussed below, we first determine we have jurisdiction
to consider this appeal. We then agree with Hardin that Beam
forfeited his tolling argument by failing to raise it in the probate
court. However, because Beam’s contention on appeal presents a
pure question of law and rests on undisputed facts, we exercise
our discretion to address it on the merits. In so doing, we
conclude the probate court erred by dismissing the petition as
untimely because Emergency rule 9 tolled the statute of
limitations. We also reject Hardin’s other contentions.
Consequently, we reverse the judgment and remand the case to
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the probate court to conduct further proceedings consistent with
this opinion.
BACKGROUND1
The following undisputed facts are taken from Beam’s
petition and the exhibits attached thereto. The Trust was created
in February 2009 by Anne R. Holland, Beam’s aunt. Beam was a
beneficiary of the Trust, and Hardin became the sole trustee
upon Holland’s death in February 2013. On November 15, 2017,
Hardin mailed each of the beneficiaries a Final Distribution and
Accounting.
On January 19, 2021, Beam filed a petition under Probate
Code2 sections 15642, 16049, 16420, and 17200. As noted above,
the petition asserts Hardin breached his fiduciary duties while
handling Trust affairs between February 2013 and November
2017. Through his petition, Beam sought, among other things:
(1) removal of Hardin as trustee; (2) appointment of a receiver
or temporary trustee; (3) “a full accounting detailing all of the
transactions undertaken by [Hardin] on behalf of the Trust[ ]”;
(4) “an order directing [Hardin] to surrender and return all of the
assets traceable from the [Trust]”; and (5) “[t]o compel [Hardin]
to redress the breach of [t]rust by payment of money or otherwise
with interest at the legal rate.”
In May 2021, Hardin filed a request to dismiss the petition.
In addition to several other arguments, Hardin contended Beam’s
claims were barred by the statute of limitations. Specifically, he
1 We limit our discussion of the background to the facts
relevant to the issues presented on appeal.
2 All further undesignated statutory references are to the
Probate Code.
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argued that the claims were governed by the three-year
limitations period set forth in section 16460, subdivision (a)(1).
According to Hardin, the limitations period began to run on
November 15, 2017, when he provided Beam with a final report
and accounting satisfying the requirements of sections 16062 and
16063. Hardin asserted the petition therefore was time-barred, as
Beam was required to file it no later than November 15, 2020,
but did not do so until January 19, 2021.
In July 2021, Hardin filed a supplemental brief in support
of his request to dismiss. He argued Emergency rule 9 did not toll
the statute of limitations governing Beam’s claims because “[t]he
[California] Constitution, the Civil Code, and case law preclude
and prohibit Emergency rule 9, which emanated from an
administrative agency, from being the law or changing the
existing statutory law passed by the legislature.”
In August 2021, Beam filed an opposition to Hardin’s
request to dismiss his petition. A day later, he filed a revised
opposition. In neither filing did he address Hardin’s contention
that his claims were time-barred, let alone argue his petition was
timely because Emergency rule 9 tolled the applicable statute of
limitations.
At a hearing held in September 2021, Hardin’s counsel
referred the probate court to his supplemental brief filed in July
2021. Specifically, he stated: “We got the statute of limitations
problem, and I filed a supplemental brief on that showing
that . . . only the Legislature can determine statutes of
limitations. And I cited the constitution, the cases, and the court
rules.” When afforded an opportunity to respond, Beam’s counsel
made the following remark on the petition’s timeliness: “[W]e
justifiably relied on the extension provided for the [sic]
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emergency order or else we wouldn’t have filed it.” He did not
raise any other arguments relating to Emergency rule 9.
Following the hearing, the probate court dismissed the
petition without leave to amend. In so doing, it explained: “The
statute of limitations regarding claims arising from accounts of
trusts is 3 years, and can begin to run even if the written report
that discloses the potential grounds for a claim is not compliant
with other requirements regarding accountings. [Citations.] The
Petition, filed on January 19, 2021, was filed more than 3 years
after [Beam] received the written report upon which his Petition
is explicitly based. [Citation.] The Petition is therefore time-
barred and dismissal is granted on these grounds, without leave
to amend.” The probate court did not address whether Emergency
rule 9 tolled the statute of limitations.
DISCUSSION
I. Jurisdiction to Consider this Appeal
As an initial matter, we note Hardin contends we lack
jurisdiction to consider this appeal. He raises two arguments in
support of his position, which we address in turn.
First, Hardin contends Beam seeks to challenge a non-
appealable order. In so doing, he cites section 1304, subdivision
(a)(1), which provides: “With respect to a trust, the grant or
denial of the following orders is appealable: [¶] Any final order
under Chapter 3 (commencing with Section 17200) of Part 5 of
Division 9, except the following: [¶] (1) Compelling the trustee to
submit an account or report acts as trustee.” We reject his
contention because this statutory provision does not apply here.
Beam does not seek review of any order “[c]ompelling [Hardin] to
submit an account or report acts as trustee.” (§ 1304, subd.
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(a)(1).) Instead, this appeal challenges the probate court’s
dismissal of Beam’s petition without leave to amend.
Next, although not entirely clear, Hardin appears to
contend this appeal is moot. In support of his position, he asserts
the Trust was terminated on November 15, 2017, when all of the
Trust assets were distributed. Therefore, he argues, Beam cannot
obtain two of the remedies requested in his petition, namely,
removal of Hardin as trustee and appointment of a receiver.
“‘. . . [M]oot cases “are ‘[t]hose in which an actual
controversy did exist but, by the passage of time or a change in
circumstances, ceased to exist.’”’ [Citation.] ‘The pivotal question
in determining if a case is moot is therefore whether the
[appellate] court can grant the [appellant] any effectual relief.’”
(Committee for Sound Water & Land Development v. City of
Seaside (2022) 79 Cal.App.5th 389, 405 (Committee).)
Even assuming, arguendo, the Trust was terminated in
November 2017, and that Beam cannot obtain the two forms of
relief discussed above, we conclude this appeal is not moot. In
addition to requesting the relief with which Hardin takes issue,
the petition seeks other forms of relief, which do not hinge on the
Trust’s present existence. For example, as noted above, Beam
seeks “[t]o compel [Hardin] to redress [his] breach of [t]rust by
payment of money or otherwise with interest at the legal rate.”
Therefore, through reversing the petition’s dismissal, we can
“‘grant [Beam] . . . effectual relief’” (Committee, supra, 79
Cal.App.5th at p. 405) by giving him the chance to pursue his
claims in the probate court and (if successful) obtain the relief
sought.
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In sum, for the reasons discussed above, we reject Hardin’s
jurisdictional contentions and conclude we have jurisdiction over
this appeal.
II. Order Dismissing Beam’s Petition
Beam contends the probate court erred by concluding his
petition was time-barred. Specifically, while he concedes the
applicable three-year statute of limitations began to run when he
received his Final Distribution and Accounting from Hardin on
November 15, 2017, he argues that Emergency rule 9 effectively
extended the deadline for filing his claims from November 15,
2020 to May 12, 2021. Beam therefore asserts his petition was
timely because he filed it on January 19, 2021.
We acknowledge Beam did not raise his tolling argument in
the probate court. As noted above, he did not advance the
argument in his original or revised opposition to Hardin’s request
for dismissal. Nor did Beam’s counsel clearly present it at the
September 2021 hearing. Ordinarily, failure to raise an issue
below results in forfeiture on appeal. (See, e.g., Howitson v.
Evans Hotels, LLC (2022) 81 Cal.App.5th 475, 489 [“It is well
settled that the failure to raise an issue in the trial court
typically forfeits on appeal any claim of error based on that
issue”].)
“However, there are exceptions to the forfeiture rule. A
court of review has discretion to consider an issue not raised in
the trial court to the extent it presents a pure question of law or
involves undisputed facts.” (Howitson v. Evans Hotels, LLC,
supra, 81 Cal.App.5th at p. 489.) Here, the facts underlying
Beam’s contention on appeal are not in dispute, and whether
Emergency rule 9 applies in this case presents a pure question of
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law. We therefore exercise our discretion and address the merits
of Beam’s tolling argument. (See ibid.)
“[T]he Judicial Council’s adoption of emergency rules in
2020, including Emergency rule 9, followed the Governor’s
declaration of a state of emergency: ‘On March 4, 2020, Governor
Gavin Newsom declared a state of emergency as a result of the
threat of COVID-19, and on March 19, 2020, issued an executive
order directing all Californians not providing essential services to
stay home. [Citation.] The order did not close courts, which
provide an essential service.’ [Citation.] [¶] Thereafter, ‘[o]n
March 27, 2020, the Governor [exercised his authority under the
Emergency Services Act, including Government Code sections
8567, 8571, and 8627 to] issue[ ] Executive Order N-38-20, which
“suspended any limitations in Government Code section 68115 or
any other provision of law that limited the Judicial Council’s
ability to issue emergency orders or rules, and suspended
statutes that may be inconsistent with rules the Judicial Council
may adopt.” [Citation.] [¶] Acting on that authority, on April 6,
2020, the Judicial Council adopted 11 emergency rules.’”
(Committee, supra, 79 Cal.App.5th at p. 401.)
“As originally adopted on April 6, 2020, Emergency rule 9
tolled all statutes of limitation for civil causes of action until 90
days after the Governor declared that the state of emergency
related to the COVID-19 pandemic is lifted.” (Committee, supra,
79 Cal.App.5th at p. 401, fn. omitted.) Subsequently, the Judicial
Council amended Emergency rule 9 by adopting, among other
things, subdivision (a), effective May 29, 2020, which reads as
follows: “Notwithstanding any other law, the statutes of
limitations and repose for civil causes of action that exceed 180
days are tolled from April 6, 2020, until October 1, 2020.” (Cal.
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Rules of Court, Appendix I: Emergency Rules Related to COVID-
19, rule 9, subdivision (a).)
The Advisory Committee comment on Emergency rule 9
states that “Emergency rule 9 is intended to apply broadly to toll
any statute of limitations on the filing of a pleading in court
asserting a civil cause of action.” (Advisory Com. Cmt., Cal. Rules
of Court, Appendix I: Emergency Rules Related to COVID-19,
rule 9.) Of particular relevance to this case, the comment further
states: “The rule also applies to statutes of limitations on filing of
causes of action in court found in codes other than the Code of
Civil Procedure, including the limitations on causes of action
found in, for example, the Family Code and Probate Code.” (Ibid.)
Several California appellate courts have held “‘[t]he plainly
intended meaning of Emergency rule 9 is that statutes of
limitation and repose for pleadings commencing civil causes of
action . . . are temporarily tolled.” (Committee, supra, 79
Cal.App.5th at p. 403; see also People v. Financial Casualty &
Surety, Inc. (2021) 73 Cal.App.5th 33, 42.) “‘A tolling provision
suspends the running of a limitations period.’ [Citation.] In other
words, ‘the limitations period stops running during the tolling
event, and begins to run again only when the tolling event has
concluded. As a consequence, the tolled interval, no matter when
it took place, is tacked onto the end of the limitations period, thus
extending the deadline for suit by the entire length of time
during which the tolling event previously occurred.’” (Committee,
supra, 79 Cal.App.5th at p. 403.)
The parties do not dispute the statute of limitations
governing Beam’s claims is section 16460, subdivision (a)(1). That
statute provides, in relevant part: “If a beneficiary has received
an interim or final account in writing, or other written report,
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that adequately discloses the existence of a claim against the
trustee for breach of trust, the claim is barred as to that
beneficiary unless a proceeding to assert the claim is commenced
within three years after receipt of the account or report.”
(§ 16460, subd. (a)(1).)
Applying the principles discussed above, including the
Advisory Committee’s guidance, we conclude Emergency rule
9(a), as amended on May 29, 2020, applies to section 16460,
subdivision (a), and tolled the limitations period from April 6 to
October 1, 2020 (i.e., for a period of 178 days). As noted above,
Beam concedes—and Hardin does not dispute—the limitations
period commenced on November 15, 2017, and ordinarily would
have expired on November 15, 2020. Emergency rule 9(a),
however, effectively “‘extend[ed] the deadline’” for Beam to
commence a proceeding asserting his breach of trust claims by
178 days, from November 15, 2020 to May 12, 2021. (Committee,
supra, 79 Cal.App.5th at p. 403.) Thus, Beam’s petition was
timely, as he filed it on January 19, 2021.
We reject Hardin’s contention that Ables v. A. Ghazale
Brothers, Inc. (2022) 74 Cal.App.5th 823 (Ables) establishes
Emergency rule 9 does not apply here. There, the appellate court
affirmed the dismissal of the plaintiff’s action based on her
failure to bring the case to trial within the time required by Code
of Civil Procedure section 583.310. (Ables, supra, at pp. 825-826.)
In so doing, the appellate court rejected the plaintiff’s contention
Emergency rule 10(a) 3 triggered Code of Civil Procedure section
3 Emergency rule 10(a) provides: “Notwithstanding any other
law, including Code of Civil Procedure section 583.310, for all
civil actions filed on or before April 6, 2020, the time in which to
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583.350. (Ibid.) That statute provides: “If the time within which
an action must be brought to trial . . . is tolled or otherwise
extended pursuant to statute . . . , the action shall not be
dismissed . . . if the action is brought to trial within six months
after the end of the period of tolling or extension.” (Code Civ.
Proc, § 583.350.) The appellate court explained: “Because
Emergency [r]ule 10(a) is not a statute but an administrative
rule, it did not extend [the plaintiff’s] deadline [to bring her case
to trial] pursuant to statute and did not trigger [Code of Civil
Procedure] section 583.350’s extra six-month period. [Her] failure
to establish a statutory ‘extension, excuse, or exception’ is fatal to
her appeal, and the trial court properly dismissed her case.”
(Ables, supra, at p. 828, fns. omitted.)
Accordingly, the appellate court in Ables considered
whether Emergency rule 10(a)’s extension of the time in which a
plaintiff must bring a civil action to trial could trigger an
additional extension provided by Code of Civil Procedure section
583.350. (Ables, supra, 74 Cal.App.5th at pp. 825-826.) The court
did not address whether Emergency Rule 10(a) could, as an
administrative rule, extend the five-year deadline set forth in
Code of Civil Procedure, section 583.310. (Ables, supra, at pp.
825-826.) Nor did it hold that, as Hardin appears to contend, an
administrative rule cannot extend deadlines established by
statute. (See ibid.) Further, the Ables court did not address the
issue presented in this appeal, i.e., whether Emergency rule 9
tolls the statute of limitations governing a beneficiary’s claim for
breach of fiduciary duty against a trustee. (Ables, supra, at pp.
bring the action to trial is extended by six months for a total time
of five years and six months.” (Cal. Rules of Court, Appendix I:
Emergency Rules Related to COVID-19, rule 10, subd. (a).)
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825-826.) Thus, we have no occasion to consider whether we
agree with Ables. We therefore conclude Hardin’s argument that
Emergency rule 9 does not apply is unavailing because it is
unsupported by the legal authority on which he relies.4
Lastly, Hardin argues that even if the probate court erred
by finding the petition was time-barred, we should affirm because
Beam was not prejudiced by this error. Specifically, Hardin
contends the probate court found Beam signed a written release
of all claims against Hardin arising out of his administration of
the Trust, and dismissed the petition on that additional ground,
which Beam has not challenged on appeal.5
Again, we reject Hardin’s contention. In dismissing the
petition, the probate court did not—as Hardin contends—find
Beam signed a written release of all of his claims against Hardin,
and dismiss the petition on that basis. While the probate court
mentioned Beam “signed [a] waiver[,]” it did so solely in the
4 We note that in his supplemental brief filed in the probate
court, Hardin raised a number of other arguments challenging
the applicability of Emergency rule 9 based on other authorities.
He has not renewed these arguments on appeal. We therefore
need not consider them.
5 For the first time at oral argument, Hardin argued Beam
failed to demonstrate the trial court’s order resulted in a
miscarriage of justice because section 4.4 of the Trust and section
16461, subdivision (a) extinguished all of Beam’s probate claims.
We need not address this contention because Hardin did not raise
it in his appellate brief. (See Ace American Ins. Co. v. Walker
(2004) 121 Cal.App.4th 1017, 1027 fn. 2 [“We need not consider
an argument not mentioned in the briefs and raised for the first
time at oral argument.”].)
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context of summarizing Hardin’s argument on the petition’s
timeliness. Specifically, the probate court stated: “[Hardin] also
brings affirmative defenses regarding the statute of limitations,
and argues the [p]etition should be dismissed because [Beam]
was made aware of any claims in the [p]etition as of November
15, 2017, when he signed the waiver and acknowledgement of
accounting attached to the [p]etition as Exhibit F.” (Italics added.)
Immediately thereafter, the probate court determined the
petition was time-barred and dismissed the petition without
leave to amend solely on that basis.
In sum, for the reasons discussed above, we conclude
Emergency rule 9 applies in this case. Per this rule, the three-
year statute of limitations governing Beam’s breach of fiduciary
duty claims was tolled from April 6 to October 1, 2020, and the
deadline by which Beam was required to initiate an action
asserting his claims was extended from November 15, 2020 to
May 12, 2021. Thus, his petition, filed on January 19, 2021, was
timely, and the probate court erred by dismissing it as time-
barred. Further, we cannot conclude the error was harmless, as
Hardin has not shown we may affirm on other grounds.6
6 Hardin’s motion to impose sanctions on Beam and his
counsel, filed November 17, 2022, is hereby denied.
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DISPOSITION
The judgment is reversed. The case is remanded to the
probate court for further proceedings consistent with this opinion.
In the interests of justice, each party shall bear his own costs on
appeal.
CURREY, Acting P.J.
We concur:
COLLINS, J.
DAUM, 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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