Garcia v. Sanchez CA2/3 ( 2022 )

Filed 8/29/22 Garcia v. Sanchez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
LUPE GARCIA, B308519
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC626207
v.
CECILIA LUNA DE SANCHEZ,
Individually and as Successor
Trustee, etc.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Stephanie M. Bowick, Judge. Affirmed.
Andrew B. Cervik for Plaintiff and Appellant.
MacCarley & Rosen and Lisa MacCarley for Defendant
and Respondent.
_________________________
Plaintiff Lupe Garcia appeals a judgment of dismissal
following an order sustaining the demurrer, without leave to
amend, of defendant Cecilia Luna de Sanchez, in her individual
capacity and as successor trustee of the Jose H. Sanchez Living
Trust. Lupe sued Cecilia to recover an alleged interest in certain
real properties held in the trust.1 The trial court concluded a
judgment against Lupe in an earlier probate action where she
asserted an interest in the same real properties precluded her
claims in this action under the res judicata doctrine. Our review
of the record confirms the elements of res judicata are satisfied.
We affirm.
FACTS AND PROCEDURAL HISTORY
1. Background
Lupe is the daughter of Jose H. Sanchez and Catalina
Iracheta de Sanchez. During their marriage, Jose and Catalina
acquired real property on Great Oak Circle and Roseview Avenue
in Los Angeles County, which they held as joint tenants. In 1984,
Jose and Catalina executed a will (the 1984 Will) that granted
each spouse a life estate in the real property and provided that,
upon the surviving spouse’s death, Lupe would inherit Great
Oak Circle. The remaining real and personal property would
be divided equally among Lupe and her three half-siblings
(Catalina’s children from a previous marriage).
After Catalina died in 1987, Jose married Cecilia.
They had one son, Jose H. Sanchez, Jr. On May 15, 1990,
Jose recorded an “Affidavit—Death of Joint Tenant” that
conveyed the title of Great Oak Circle to himself and Lupe
as joint tenants. On February 1, 1996, Jose recorded a deed
1 Because some individuals in this case have the same
or similar last names, we use first names for clarity.
2
conveying his interest in Great Oak Circle to himself as trustee
of the Jose H. Sanchez Revocable Trust of January 26, 1996.
In 1999, Jose revoked his 1996 trust and conveyed his interest
in Great Oak Circle into the Jose H. Sanchez Living Trust
(the Trust). He later amended the Trust to give the entire
trust estate, including his interest in Great Oak Circle and
the Roseview property, to Cecilia. Under the Trust, if Cecilia
predeceased Jose, Jose Jr. would receive the entire trust estate
upon Jose’s death.
2. The Earlier Probate Action
Jose died on July 6, 2012. Within one year, on July 5, 2013,
Lupe filed a civil complaint for quasi-specific performance of
the1984 Will and to impose a constructive trust against Jose’s
estate, the Trust, and others. Lupe’s civil complaint alleged
that when Jose conveyed his interest in Great Oak Circle and
Roseview to the Trust, he breached his contract with Catalina
as set forth in the 1984 Will. On the same day, Lupe petitioned
for probate of Jose’s estate under the 1984 Will and for letters
of administration. Cecilia filed a will contest, alleging the
1984 Will had been revoked by a will that Jose executed on
July 9, 2010 (the 2010 Will).
On November 4, 2013, Judge William Fahey ordered
Lupe’s civil case stayed pending resolution of her petition to
probate the 1984 Will. Lupe then filed a notice of related cases,
listing the petition to probate the 1984 Will and the civil case
as related cases. The court declined to relate the cases because
the civil case had been stayed. On November 7, 2014, Judge
Fahey held an order to show cause hearing on why the civil case
should not be dismissed. After argument, the court dismissed
the civil case without prejudice.
3
On November 10, 2014, Lupe filed a petition under
Probate Code section 850, subdivisions (a)(2) and (a)(3) (the
first 850 petition), seeking an order establishing her claim of
ownership to the property, directing transfer of the property
to her, and for quasi-specific performance of a contract to make
a will and to impose a constructive trust based on the 1984 Will.
Judge Maria Stratton held a court trial on Cecilia’s
will contest and Lupe’s petition to probate the 1984 Will. In a
comprehensive ruling, Judge Stratton concluded (1) the 1984 Will
was a joint and mutual will that Jose revoked when he executed
the 2010 Will; and (2) the 1984 Will also constituted a contract
between Jose and Catalina to make reciprocal dispositive
provisions, including the real property dispositions to Lupe
and her siblings as specified in the 1984 Will. The probate court
clarified that “[t]he issue of what properties are properly included
in Jose’s estate is not addressed by this decision as the only
matter currently before the court is Cecilia’s will contest.” But
the court also noted that, in light of the 1984 Will’s contractual
nature, “Jose’s revocation of this 1984 [W]ill may not conclusively
resolve how the property shall ultimately be distributed.”
Judge Stratton granted Cecilia’s will contest and denied
Lupe’s petition to probate the 1984 Will. The probate court also
ordered Lupe to show cause why the first 850 petition should
not be dismissed, as Lupe had not been appointed the personal
representative of Jose’s estate.
On November 12, 2015, Judge Stratton held a hearing on
the order to show cause. The probate court observed that Lupe
had amended the first 850 petition by filing “a supplemental
petition” that “completely change[d] [her] legal theory.” Because
the purported supplemental petition requested “completely
4
different relief,” the court dismissed the first 850 petition and
instructed Lupe that she needed to refile her petition as a
separate trust action.
On November 13, 2015, Lupe filed a petition under Probate
Code section 850, subdivision (a)(3)(A) in the trust department
(the second 850 petition). In her second 850 petition, Lupe
alleged the 1984 Will evidenced an agreement between Jose
and Catalina that the survivor would not alter the property
distributions made in that will. She alleged Jose breached
the agreement when he made a contrary distribution in the
Trust. The petition requested that Cecilia, as successor trustee
of the Trust, transfer her interest in Great Oak Circle and
one-fourth of the proceeds from the sale of Roseview (which
Cecilia allegedly sold in April 2016), to Lupe.
Cecilia filed a demurrer to the second 850 petition, arguing
Lupe’s claims were time-barred under the one-year statute
of limitations in Code of Civil Procedure section 366.2 (section
366.2). Because Lupe filed the second 850 petition more than
three years after Jose’s death, and the statute of limitations in
section 366.2 could not be tolled, Cecilia argued the demurrer
should be sustained without leave to amend.
Lupe opposed the demurrer. She argued her rights arose
only after Jose died, and she maintained Judge Stratton had
tolled the statute of limitations when she told Lupe to refile
her petition in the trust department.
Judge Clifford Klein sustained the demurrer to the
second 850 petition without leave to amend. The probate court
concluded the second 850 petition was untimely under the
one-year statute of limitations in section 366.2 and Lupe had
not pleaded facts demonstrating Cecilia should be estopped from
5
asserting the statute of limitations. On June 2, 2017, the
probate court entered judgment in favor of Cecilia.
Lupe appealed the judgment of dismissal, arguing the
second 850 petition alleged sufficient facts to equitably estop
Cecilia from asserting the statute of limitations as a defense.
On October 16, 2019, we filed an opinion affirming the
judgment. We concluded Lupe could “point to no statements
or actions by Cecilia during the one-year period after [Jose’s]
death that prevented [Lupe] from filing a timely 850 petition,”
and we rejected the contention that statements made by Judge
Stratton when she dismissed the first 850 petition somehow
warranted an equitable estoppel against Cecilia. (Garcia v.
De Sanchez (Oct. 16, 2019, B282029) [nonpub. opn.] (Garcia I).)
3. The Current Action
On July 6, 2016, Lupe filed the current action against
Cecilia in her individual capacity and as successor trustee of
the Trust. The operative first amended complaint asserts three
causes of action for breach of contract, promissory estoppel, and
breach of implied covenant, all premised on the allegation that
Lupe was “an intended and specifically identified third party
beneficiary under a valid written contract contained within a
joint and mutual will”—i.e., the 1984 Will. Under the contract
contained in the 1984 Will, Lupe alleges she became the 100
percent interest owner of Great Oak Circle and 25 percent
interest owner of Roseview upon her father’s death, by operation
of law.
Cecilia filed a demurrer, arguing the judgment in
the former probate action precluded Lupe’s claims under the
res judicata doctrine. In opposition, Lupe argued res judicata
is “not a grounds for demurrer” under the governing statutes.
6
The trial court sustained Cecilia’s demurrer without leave
to amend and entered a judgment of dismissal. Lupe filed a
timely notice of appeal.
DISCUSSION
“ ‘Res judicata’ describes the preclusive effect of a final
judgment on the merits. Res judicata, or claim preclusion,
prevents relitigation of the same cause of action in a second suit
between the same parties or parties in privity with them. . . .
Under the doctrine of res judicata, . . . a judgment for the
defendant serves as a bar to further litigation of the same cause
of action.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888,
896–897 (Mycogen).) “ ‘The principle underlying the rule of claim
preclusion is that a party who once has had a chance to litigate
a claim before an appropriate tribunal usually ought not to have
another chance to do so.’ ” (Burdette v. Carrier Corp. (2008) 158
Cal.App.4th 1668, 1681 (Burdette).)
“Res judicata bars the relitigation not only of claims that
were conclusively determined in the first action, but also matter
that was within the scope of the action, related to the subject
matter, and relevant to the issues so that it could have been
raised.” (Burdette, supra, 158 Cal.App.4th at pp. 1674–1675,
citing Sutphin v. Speik (1940) 15 Cal.2d 195, 202 (Sutphin);
Merry v. Coast Community College Dist. (1979) 97 Cal.App.3d
214, 222.) “A party cannot by negligence or design withhold
issues and litigate them in consecutive actions. Hence the rule
is that the prior judgment is res judicata on matters which
were raised or could have been raised, on matters litigated
or litigable.” (Sutphin, at p. 202.)
Claim preclusion arises if a second suit involves (1) the
same cause of action or matter within that action (2) between
7
the same parties (3) after a final judgment on the merits in the
first suit. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813,
824; Sutphin, supra, 15 Cal.2d at p. 202.) “If claim preclusion
is established, it operates to bar relitigation of the claim
altogether.” (DKN Holdings, at p. 824.)
Cecilia asserts, and the trial court concluded, the judgment
in Lupe’s former probate action precludes her current action
under the res judicata doctrine. We agree.
Under our res judicata doctrine, a second suit involves
the same cause of action as a former action if both suits seek to
vindicate the same “primary right.” (Mycogen, supra, 28 Cal.4th
at p. 904.) The primary right theory “ ‘provides that a “cause
of action” is comprised of a “primary right” of the plaintiff, a
corresponding “primary duty” of the defendant, and a wrongful
act by the defendant constituting a breach of that duty.’ ” (Ibid.)
“ ‘The most salient characteristic of a primary right is that it is
indivisible: the violation of a single primary right gives rise to
but a single cause of action.’ ” (Ibid.) “ ‘[T]he primary right is
simply the plaintiff’s right to be free from the particular injury
suffered. [Citation.] It must therefore be distinguished from
the legal theory on which liability for that injury is premised:
“Even where there are multiple legal theories upon which
recovery might be predicated, one injury gives rise to only
one claim for relief.” [Citation.] The primary right must also
be distinguished from the remedy sought: “The violation of one
primary right constitutes a single cause of action, though it may
entitle the injured party to many forms of relief, and the relief
is not to be confounded with the cause of action, one not being
determinative of the other.” ’ ” (Ibid.)
8
Our review of the operative complaint confirms Lupe’s
current action seeks to vindicate the primary right to enforce her
interest as a third party beneficiary under the mutual contract
between Jose and Catalina embodied in the 1984 Will. To that
end, the complaint alleges Lupe “is an intended and specifically
identified third party beneficiary under a valid written contract
contained within a joint and mutual will” between Jose and
Catalina, under which Jose was obligated to ensure she received
the interests in the relevant real properties identified in the will.
This is the same primary right Lupe asserted in the second
850 petition, in which she alleged the 1984 Will “constitute[d]
a written agreement and contract” between Jose and Catalina
“whereby the survivor was obligated to abide by the provisions
for the distribution of the [relevant real properties] as specified
in the will,” including the identified distribution to Lupe “as a
beneficiary under the agreement contained in the 1984 Will.”
While Lupe maintains her claims are different because “[t]he
850 Petition was a probate remedy not a civil remedy,” that
distinction makes no difference under the primary right theory
that governs our res judicata doctrine. (See Mycogen, supra,28 Cal.4th at pp. 905, 909 [second suit alleging “a breach of
the same contract, differing only in the requested remedy[,]”
was “based on the violation of the same primary right” and thus
barred under res judicata doctrine].)
The judgment on the second 850 petition also plainly
satisfies the second element—Lupe’s former probate action
involved herself and Cecilia in Cecilia’s individual and trustee
capacities (the same parties to this action).
Because Lupe’s former probate action was dismissed on
statute of limitations grounds, the last element—a final judgment
9
on the merits—is less straightforward in this case. Res judicata
may be raised as a defense “on demurrer when all relevant
facts ‘are within the complaint or subject to judicial notice.’
[Citations.] Furthermore, that defense may be invoked even
when the prior judgment resulted from the sustaining of
a demurrer, provided that the judgment was ‘on the merits.’
[Citation.] Whether the prior judgment was on the merits
depends upon the facts of the case and the reason for the ruling.”
(Boyd v. Freeman (2017) 18 Cal.App.5th 847, 855 (Boyd), italics
added.)
“The words ‘on the merits’ have an accepted legal meaning.
They refer to the substantive elements of a claim or defense,
as distinguished from technical or procedural impediments to
proceeding with a claim.” (Smart Corner Owners Assn. v. CJUF
Smart Corner LLC (2021) 64 Cal.App.5th 439, 461, citing Black’s
Law Dict. (11th ed. 2019) p. 1185, col. 2 [defining “merits” as
“[t]he elements or grounds of a claim or defense; the substantive
considerations to be taken into account in deciding a case,
as opposed to extraneous or technical points, esp[ecially] of
procedure”].) Consistent with this accepted meaning, under
the res judicata doctrine, a “judgment based upon the sustaining
of a demurrer for technical or formal defects is not on the merits
and thus is not a bar to the filing of the new action. [Citation.]
‘On the other hand, it is generally held that a demurrer which
is sustained for failure of the facts alleged to establish a cause
of action, is a judgment on the merits. However, this is true only
if the same facts are pleaded in the second action [citation], or if,
although different facts are pleaded, the new complaint contains
the same defects as the former.’ ” (Boyd, supra, 18 Cal.App.5th
10at p. 855; Koch v. Rodlin Enters. (1990) 223 Cal.App.3d 1591,
1596 (Koch).)
For res judicata purposes, our appellate courts have
recognized “a prior judgment based on the statute of limitations
ordinarily is not on the merits.” (Boyd, supra, 18 Cal.App.5th
at p. 856; Koch, supra, 223 Cal.App.3d at p. 1596.) Those
decisions have relied on our Supreme Court’s holding in Lackner
v. LaCroix (1979) 25 Cal.3d 747 (Lackner), where the high
court explained in the malicious prosecution context that the
“[t]ermination of an action by a statute of limitations defense
must be deemed a technical or procedural as distinguished from
a substantive termination. . . . [¶] ‘ “Statutes of limitations . . .
are designed to promote justice by preventing surprises through
the revival of claims that have been allowed to slumber until
evidence has been lost, memories have faded, and witnesses
have disappeared. The theory is that even if one has a just claim
it is unjust not to put the adversary on notice to defend within
the period of limitation and that the right to be free of stale
claims in time comes to prevail over the right to prosecute them.”
[Citation.]’ [Citation.] Thus the purpose served by dismissal
on limitations grounds is in no way dependent on nor reflective
of the merits—or lack thereof—in the underlying action.”
(Id. at pp. 751–752 [holding, “[a] bar raised by the statute of
limitations does not reflect on the merits of the action and thus
is not a favorable termination for purposes of a subsequent
malicious prosecution action”].)
But in the res judicata context, our Supreme Court has
explained that an absolute defense, even if technical in nature,
may be deemed to be on the merits, if the plaintiff cannot correct
the defects by a different pleading in proper form: “A judgment
11
given after the sustaining of a general demurrer on a ground
of substance, for example, that an absolute defense is disclosed
by the allegations of the complaint, may be deemed a judgment
on the merits, and conclusive in a subsequent suit; and the same
is true where the demurrer sets up the failure of the facts alleged
to establish a cause of action, and the same facts are pleaded in
the second action. [Citations.] But even a judgment on general
demurrer may not be on the merits, for the defects set up may
be technical or formal, and the plaintiff may in such case by a
different pleading eliminate them or correct the omissions and
allege facts constituting a good cause of action, in proper form.
Where such a new and sufficient complaint is filed, the prior
judgment on demurrer will not be a bar.” (Goddard v. Security
Title Ins. & Guarantee Co. (1939) 14 Cal.2d 47, 52 (Goddard),
italics added; accord, Keidatz v. Albany (1952) 39 Cal.2d 826, 828
(Keidatz) [“[E]ven though different facts may be alleged in the
second action, if the demurrer was sustained in the first action on
a ground equally applicable to the second, the former judgment
will also be a bar.”].)
The reviewing court in Boyd reversed a judgment of
dismissal, concluding the trial court erred in sustaining a
demurrer on res judicata grounds where the former judgment
was based in part on the plaintiff’s failure to bring a timely claim
under the statute of limitations. (Boyd, supra, 18 Cal.App.5th
at pp. 857, 861–862.) In the earlier action, the plaintiff sued her
former attorney for breach of fiduciary duty, alleging the attorney
made a “ ‘usurious’ loan” secured by a property in Glendale
that the plaintiff later lost to the attorney in foreclosure. (Id.
at p. 851.) The trial court sustained the attorney’s demurrer,
concluding the claims were untimely under applicable statutes
12
of limitations and otherwise legally untenable. (Ibid.) The
plaintiff then commenced a new action, asserting claims
for wrongful foreclosure and quiet title, based on allegations
that the attorney “ ‘caused an illegal, fraudulent or willfully
oppressive sale’ of the Glendale property.” (Id. at pp. 852–853.)
The trial court sustained the attorney’s demurrer, concluding
the former judgment barred the plaintiff’s claims under the
res judicata doctrine. (Id. at p. 853.) The Boyd court reversed.
While the Boyd court recognized “both actions involved
one primary right in common—namely, the right associated with
the nonjudicial foreclosure scheme,” it concluded “the judgment
in the first action was not on the merits with respect to that
primary right, and thus did not bar [the plaintiff’s] second
action.” (Boyd, supra, 18 Cal.App.5th at p. 857.) In so holding,
the court rejected the argument that the plaintiff’s second action
constituted “an impermissible ‘effort to circumvent . . . the
rulings . . . in the [f]irst [l]awsuit denying her leave to amend.’ ”
(Id. at p. 858.) The Boyd court explained: “[The plaintiff’s]
second action did not contravene the rule against splitting
a cause of action, as the judgment in her first action was not
‘on the merits’ with respect to the key primary right underlying
her claims in the second action. In the absence of a judgment
on the merits, the bar rule of claim preclusion did not disallow
[the plaintiff’s] new claims for unlawful foreclosure predicated
on additional factual allegations. [Citation.] Nor did the denial
of leave to amend in the first action do so. As our Supreme Court
has explained, ‘[i]f . . . new or additional facts are alleged that
cure the defects in the original pleading, it is settled that the
former judgment is not a bar to the subsequent action whether
or not plaintiff had an opportunity to amend his complaint.’ ”
13
(Id. at pp. 858–859, italics added, citing Keidatz, supra, 39 Cal.2d
at p. 828.)
Similarly, in Koch, the reviewing court reversed a judgment
of dismissal, concluding a summary judgment on statute of
limitations grounds in a former action was not a judgment on
the merits for res judicata purposes where the plaintiff’s new
pleading effectively cured the limitations defect. (Koch, supra,
223 Cal.App.3d at pp. 1593, 1597.) In the former action, the
plaintiffs had alleged the defendants unlawfully created and
sold a subdivision in violation of California law. (Ibid.) The
defendants moved for summary judgment, asserting the action
was untimely under the applicable statute of limitations. (Id.
at p. 1594.) The plaintiffs conceded the California law did not
apply, as the property was in Arizona, and they requested leave
to amend to plead a claim for fraud, explaining they had recently
discovered grounds for the claim after they filed their complaint.
The trial court granted the summary judgment and denied leave
to amend, suggesting the plaintiffs could file a second action
asserting their fraud claim. (Ibid.) But when the plaintiffs filed
the second suit, a new trial judge sustained the defendants’
demurrer without leave to amend, concluding the earlier
summary judgment was res judicata for all claims concerning
the property. (Id. at p. 1595.) The Koch court reversed.
Relying on our high court’s legal malpractice holding in
Lackner, the Koch court recognized the termination of an action
on statute of limitations grounds normally should be “deemed a
technical or procedural, rather than a substantive, termination.”
(Koch, supra, 223 Cal.App.3d at p. 1596, citing Lackner, supra,
25 Cal.3d at p. 751.) The court reasoned that statutes of
limitations serve the same purpose in all contexts—namely,
14
“to set controversies at rest by foreclosing consideration on the
merits of the claim.” (Koch, at p. 1596.) But the Koch court also
recognized, under Goddard, that a “ ‘judgment given after the
sustaining of a general demurrer on a ground of substance, for
example, that an absolute defense is disclosed by the allegations
of the complaint, may be deemed a judgment on the merits, and
conclusive in a subsequent suit.’ ” (Koch, at p. 1597, quoting
Goddard, supra, 14 Cal.2d at p. 52.) It ultimately held that rule
did not apply, however, because the plaintiffs’ former action
“was barred by the statute of limitations for contract rescission
actions, a procedural but not absolute defense,” whereas the
plaintiffs’ new action was “based on common law fraud which
allegedly was discovered within the applicable limitations period.”
(Koch, at p. 1597, italics added.) Because the plaintiffs “ ‘by
a different pleading’ ” were able to “ ‘eliminate [the statute of
limitations defect] . . . and allege facts constituting a good cause
of action, in proper form,’ ” the Koch court held “the former
judgment does not bar the present case.” (Ibid., quoting
Goddard, at p. 52.)
Cecilia argues Boyd and Koch are inapposite because
the plaintiffs in those cases “had the ability to salvage their
complaint by [asserting a] new and different theory of recovery.”
By contrast, she says Lupe “could not and did not allege new and
different facts which could circumvent the one-year statute of
limitations [under section 366.2] pertaining to claims against a
[d]ecedent.” Thus, under the rule in Goddard, Cecilia maintains
section 366.2 should not be treated as “merely procedural” for
res judicata purposes. (Underline omitted.) Rather, she argues,
it constitutes “an absolute defense to any and all claims that
15
[Lupe] has made, could make, and will ever make against her
deceased Father . . . and his estate.” We agree.
Our review of Lupe’s second 850 petition and her operative
complaint in this case confirms Lupe has not alleged new or
different facts to eliminate the statute of limitations defect that
compelled a judgment of dismissal in the former probate action.
In her second 850 petition, Lupe asserted the “doctrine of
equitable estoppel” should estop Cecilia “from raising any
affirmative defense based on the expiration of the applicable
statute of limitations based on the following: . . . Respondent
Trust and [Cecilia] knew the facts concerning [Lupe’s] claim
and/or cause of action, and made representations by words and
conduct, in that [Lupe’s] claims and/or causes of action would be
resolved in the [first 850 petition], knowing and intending that
[Lupe] would rely and act upon such representations and/or
conduct,” which Lupe relied upon in having the action heard in
the first 850 petition proceeding. Without substantive change or
additional facts, Lupe makes the same allegation in her operative
complaint, notwithstanding our holding in Garcia I that Lupe
had “not shown facts supporting a conclusion that Cecilia should
be equitably estopped from asserting the statute of limitations.”
(Garcia I.)
Similarly, in her second 850 petition, Lupe asserted the
“statute of limitations applicable to [her] cause of action should
be tolled pursuant to the doctrine of equitable tolling in that
at the time [Lupe] filed her initial action, [Lupe] was possessed
of several legal remedies”; she “reasonably and in good faith
pursued a remedy designed to provide for the relief sought”;
and “[Cecilia] received timely notice of [Lupe’s] claim within
the applicable statute of limitations period and there is no lack
16
of prejudice [sic] to defendant.” Again, without substantive
change or additional facts, Lupe makes the same allegation in
her operative complaint, notwithstanding our holding in Garcia I
that the one-year limitations period set forth in section 366.2
“ ‘shall not be tolled or extended for any reason except as
provided’ in subparts (1)–(4) [of the statute] (none of which
is relevant to the facts of this case).” (Garcia I, quoting § 366.2,
subd. (b).)
Finally, in her second 850 petition, Lupe asserted she
in fact brought her claims within the applicable limitations
period by filing the original civil action within a year of Jose’s
death. She alleged the trial court in that action, “not wishing
to continue the stay” put in place while the probate court
adjudicated the first 850 petition, decided “to dismiss the civil
case without prejudice while [Lupe] pursued her claim under
the 1984 [W]ill in the Probate Department.” In sustaining
Cecilia’s demurrer to the second 850 petition, the probate court
acknowledged the timely filing of the original civil action, but
observed that, apart from alleging the action had been dismissed
without prejudice, the second 850 petition made “no mention of
any facts surrounding the alleged agreement [to have the claims
pursued in the first 850 petition] or what was argued at the
hearing before the dismissal” to support an equitable estoppel
against Cecilia. In Garcia I, we likewise concluded Lupe had
alleged “no statements or actions by Cecilia during the one-year
period after [Jose’s] death that prevented [Lupe] from filing a
timely 850 petition.” (Garcia I.) Notwithstanding our holding
and the trial court’s observation, Lupe’s complaint does not
mention the original civil action, let alone offer additional
17
allegations about the reasons for its dismissal that would support
application of the equitable estoppel doctrine in this case.
Because the parties’ appellate briefs did not discuss
whether the judgment in the former probate action was on
the merits, we requested supplemental briefing to address
the authorities holding a judgment of dismissal on statute
of limitations grounds ordinarily is not deemed on the merits
when the plaintiff can cure the defect by a different pleading.
(See Boyd, supra, 18 Cal.App.5th at pp. 858–859; Koch, supra,
223 Cal.App.3d at p. 1597.) In her supplemental brief, Lupe
has neither pointed to new allegations in her operative
complaint, nor identified new facts that she would allege if
granted leave to amend, to cure the statute of limitations defect
that compelled dismissal of her former probate action. Instead,
she makes two arguments that we expressly rejected in Garcia I.
First, Lupe contends her claim for breach of contract did
not accrue until after her father’s death—when his life estate
ended—rendering section 366.2 inapplicable and her action
timely under the four-year statute of limitations for a claim based
on a written contract. We rejected that argument in Garcia I,
explaining:
“Section 366.2 applies to a cause of action
(as here) alleging a contract to make a will.
[Citation.] Although ‘as a general rule, such
a cause of action does not come into existence
until after the promisor has died . . . . [¶] . . . an
exception exists where the promisor has made
an inter vivos transfer of property specifically
covered by the contract. [Citations.] In that
situation, the promisee may seek equitable
18
relief against the promisor during the
promisor’s lifetime.’ [Citation.] In 2010,
[Jose] made an inter vivos transfer of Great
Oak Circle and the other property to the living
trust, and amended the living trust to leave
all the property to Cecilia. [Lupe] had an
equitable cause of action while [Jose] was alive,
and [Jose] died before expiration of the four-
year statute of limitations for filing an action
for breach of contract. [Citation.] [Jose] was
‘a person against whom an action may be
brought on a liability of the person . . . arising
in contract,’ and so [Lupe] had one year after
[Jose’s] death to file her action [under section
366.2].” (Garcia I, citing Battuello v. Battuello
(1998) 64 Cal.App.4th 842, 846–847.)
Second, Lupe contends the judgment in this case is
contrary to Dacey v. Taraday (2011) 196 Cal.App.4th 962,
because she did not have “any knowledge of the 1984 [W]ill
contract until after [Jose’s] death.” Again, we rejected that
argument in Garcia I, explaining:
“[Lupe] also argues that Dacey v. Taraday
(2011) 196 Cal.App.4th 962, establishes that
section 366.2 does not apply. In that case
it was undisputed that the decedent never
breached the contract while alive, and instead
the administrator, acting on behalf of the
estate, breached the agreement. As the breach
of contract claim was not against the decedent,
the one-year statute of limitations did not
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apply. (Dacey, at pp. 966, 973, 980.) Here,
[Jose], the decedent, breached the contract
to make a will while alive, by making a
different disposition in his living trust.”
(Garcia I; see also Ferraro v. Camarlinghi (2008) 161 Cal.App.4th
509, 554 [Section 366.2’s use of the phrase “ ‘whether accrued or
not accrued’ [applies to] . . . situations where the cause of action
existed while the decedent was alive, but had not yet accrued for
limitations purposes—as where the decedent had perpetrated
a fraud of which the plaintiff was unaware. In such a case, the
decedent’s death triggers the limitations period prescribed by
the statute, regardless of any accrual rule otherwise governing
the claim. The result is to require would-be claimants to seek
out and assert any claims they might have against the decedent
within a year of his death, or suffer the loss of those claims.”].)
It is apparent from Lupe’s complaint and her supplemental
brief that, unlike the plaintiffs in Boyd and Koch, she is unable
“ ‘by a different pleading’ ” to “ ‘eliminate [the statute of
limitations defect] . . . and allege facts constituting a good cause
of action, in proper form.’ ” (Koch, supra, 223 Cal.App.3d at
p. 1597, quoting Goddard, supra, 14 Cal.2d at p. 52; see also
Boyd, supra, 18 Cal.App.5th at pp. 858–859.) In that way,
she is more like the plaintiff in Kahn v. Kahn (1977) 68
Cal.App.3d 372. In that case, the reviewing court held
a dismissal for failure to comply with discovery orders is a
judgment on the merits for res judicata purposes. Although
the dismissal seemingly stemmed from a procedural violation,
the Khan court explained the underlying rationale for
authorizing such a dismissal was firmly rooted in “the theory
that a persistent refusal to comply with an order for the
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production of evidence is tantamount to an admission that
the disobedient party really has no meritorious claim or defense
to the action.” (Kahn, at p. 382.)
Like the Kahn court, we are compelled to conclude Lupe’s
persistent inability to allege facts supporting a timely legal claim
under section 366.2 is tantamount to an admission that she has
no meritorious claim to assert. As we explained in Garcia I,
“[i]n enacting section 366.2, ‘[t]he Legislature has determined
that the one-year statute of limitations will best effectuate
the strong public policy of expeditious and final estate
administration,’ despite the potential for unfairness under
unusual circumstances.” (Garcia I.) As it is apparent that Lupe
will be unable, no matter how many subsequent actions she may
bring, to overcome the absolute bar imposed by the statute of
limitations, we must respect that legislative determination and
hold the dismissal of her former probate action was a judgment
on the merits precluding this and any future action seeking
to vindicate her alleged rights under the 1984 Will. The trial
court did not err in concluding the res judicata doctrine bars
this action.
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DISPOSITION
The judgment is affirmed. Defendant Cecilia Luna de
Sanchez, in her individual capacity and as successor trustee
of the Jose H. Sanchez Living Trust, is entitled to costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
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