Simons v. Signature Estate & Investment Advisors CA2/7 ( 2023 )

Filed 6/21/23 Simons v Signature Estate & Investment Advisors CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JORDAN SIMONS et al., B320114
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 20STCV38728)
v.
SIGNATURE ESTATE &
INVESTMENT ADVISORS,
LLC et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Dennis L. Landin and Lawrence P. Riff, Judges.
Affirmed.
Joshua R. Furman Law and Joshua R. Furman for Plaintiff
and Appellant.
Tadjedin Thomas & Engbloom Law Group, Wendy M.
Thomas and Betty T. Huynh for Defendants and Respondents
Signature Estate & Investment Advisors, LLC and Jennifer Kim.
Lewis Brisbois Bisgaard & Smith, Raul L. Martinez and
David Samani for Defendants and Respondents Citadel Law
Corporation and Daniel C. Hales.
__________________________
Jordan and Benjamin Simons (the Simonses) appeal from
the March 14, 2022 judgment of dismissal in favor of Signature
Estate & Investment Advisors, LLC and Jennifer Kim
(collectively, the Signature defendants) after the trial court
sustained the demurrer filed by the Signature defendants and
another demurrer filed by Citadel Law Corporation and Daniel C.
Hales (collectively, the Citadel defendants).
The Simonses’ sole contention on appeal is that the trial
court erred in finding they did not have standing under the
Unfair Competition Law (Bus. & Prof. Code,1 § 17200 et seq.;
UCL) to redress conduct by the Signature and Citadel defendants
in preparing a trust for the Simonses’ father, Herbert Joseph
Simons, which reduced the children’s inheritance. Because the
Simonses have not suffered economic injury from the alleged
conduct of the Signature defendants, we affirm the March 14,
2022 judgment as to those defendants. With respect to the
Citadel defendants, the Simonses failed to appeal from the March
10, 2022 judgment of dismissal in favor of those defendants. We
therefore dismiss the appeal as to the Citadel defendants.
1 Further statutory references are to the Business and
Professions Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Allegations of the First Amended Complaint
On October 8, 2020 the Simonses filed this action against
the Signature and Citadel defendants, alleging torts arising from
estate planning services provided to Herbert.2 After the trial
court3 sustained demurrers filed by the Signature defendants and
the Citadel defendants with leave to amend, the Simonses filed a
first amended complaint alleging unfair business practices,
unauthorized practice of law, tortious interference with contract,
and tortious interference with prospective economic advantage.
The first amended complaint alleged Herbert had three
adult children from his first marriage: Jordan, Jennifer, and
Benjamin. In 2012 Herbert established a trust for the benefit of
Jordan and Jennifer and named them as successor cotrustees
upon his death. The 2012 trust provided Sharon Alfers, Herbert’s
third wife, with only a life estate in the couple’s home. Jordan
and Jennifer were to receive the residue of the trust, which
included significant assets. Benjamin, who was under a
conservatorship, was excluded from the 2012 trust to preserve his
access to public assistance for his special needs.
Contemporaneous with the establishment of the 2012 trust,
Herbert, Jordan, and Jennifer agreed Jordan and Jennifer would
use part of their inheritance to provide for Benjamin.
Kim is a senior partner with Signature, and she holds
herself out as a financial advisor and licensed insurance broker.
2 We refer to the Simons family members by their first
names to avoid confusion.
3 Judge Dennis L. Landin.
3
She has never been licensed to practice law. Hales is an attorney
licensed to practice law in California, and he is the president of
Citadel. The operative complaint alleged “Citadel is a law firm
that engages in volume practice of preparing estate plans,
sometimes referred to as a ‘trust mill.’” Further, Citadel
maintains relationships with several firms, paralegals and
financial advisors, such as Kim, designated by Citadel as
“‘Certified Citadel Estate Planners,’” or “‘CCEPP[’s],’” “to funnel
business from these respective practices to Citadel for low-cost
preparation of trusts, wills, and other estate planning
documents.”
Sometime after 2012 Kim advised Herbert to revise his
estate plan. Kim prepared an intake form for Citadel’s use based
on her interview with Herbert and Alfers. Kim identified herself
on the intake form as a “‘Citadel Associate,’” and she indicated
the couple needed a “‘Married Couple, ABC (QTIP) Trust.’” The
intake form stated Alfers would be the initial trustee if Herbert
predeceased her. It listed Herbert’s children and Alfers’s children
as the “‘primary beneficiaries,’” with Jordan and Jennifer each
receiving 50 percent of Herbert’s estate (but only after Alfers’s
death). The intake form stated Benjamin had “‘special needs.’’’
The section describing any existing trust was left blank, stating
only, “‘Copy of Trust must be submitted.’” The intake form did
not list Herbert’s 2012 trust, and the 2012 trust instrument was
not submitted to Hales or Citadel. Further, Herbert and Alfers
never spoke to Hales or anyone at Citadel concerning the content
of the intake form.
Herbert and Alfers signed a Citadel fee agreement, as
instructed by Kim, stating a fee of $1,300 would be charged for
the preparation of a “‘[c]omprehensive [e]state [p]lan’” plus $195
4
for “‘ABC.’” No one signed the fee agreement form on behalf of
Hales, Citadel, or Signature. “Herbert and Alfers never spoke to
Hales or anyone else at Citadel concerning the purported 2019
estate plan, the conflicts created by it, the efficacy of the
purported 2019 estate plan in light of Herbert’s 2012 trust, [or]
how Benjamin would be cared for under the purported 2019
estate plan.” Citadel billed Herbert $1,300 for “‘The Herbert
Joseph Simons Living Trust,’” $160 for “‘[r]evocation,’” and $160
for “‘QTIP,’” for a total of $1,620. Signature sent Herbert “an
invoice for $1,000 for work described as ‘Estate Plan-Jennifer
Kim.’’’ (Capitalization omitted.) Herbert paid the Signature and
Citadel fees.
At a June 20, 2019 meeting, Kim presented Herbert and
Alfers “with approximately 144 pages of estate planning
documents prepared by Citadel and advised them to sign.” Kim
was one of the witnesses and the notary for the signing of the
2019 trust instrument. Under the 2019 trust, Alfers became the
successor trustee after Herbert’s death, and she received the
entire estate subject to certain limitations. As alleged, “Herbert’s
children only receive a part of Herbert’s estate if anything is left
when Alfers dies. The purported 2019 trust left Benjamin’s care
as an unfunded mandate for Jordan and Jennifer to handle out of
their personal assets.” Further, “[t]he purported 2019 trust itself
states that Herbert had established a special needs trust for the
benefit of Benjamin, but Herbert had never done so. Hales and
Kim did not ascertain the dire circumstances the purported 2019
trust presented for Benjamin, or provide any advice on the
matter.”
On Kim’s instruction, Herbert signed a funding waiver
indicating “Herbert had received legal advice on titling property
5
to the trust.” However, Herbert never spoke with Hales or any
other attorney about the funding waiver. Similarly, Kim directed
Herbert to sign a waiver of conflicts agreement even though
Herbert never spoke with Hales or any other attorney about
potential conflicts of interest between Herbert and Alfers. Kim
also advised Herbert to sign a purported revocation of his 2012
trust. But “[i]t was clear that Herbert did not believe that there
had been any purported revocation of the 2012 trust because
shortly after this alleged signing, Herbert appeared at a Wells
Fargo bank branch and signed a certification of the 2012 trust.”
Herbert died on August 29, 2019. Jordan and Benjamin
were not aware that the 2012 trust had been purportedly revoked
and replaced by the 2019 trust until Alfers filed a petition with
the probate court on October 8, 2019. Moreover, “Jordan and
Alfers are presently engaged in litigation challenging the
purported 2019 trust. The outcome of that action may be
dispositive of certain or all damage claims presented here.
However, despite requests Plaintiffs were unable to secure tolling
agreements from all Defendants in order to forestall filing of
ligation pending the outcome of the probate litigation.”
The first cause of action for unfair business practices under
the UCL alleged, “Kim and Signature . . . held themselves out as
estate planning specialists and associates of Citadel. Citadel and
Hales aided and abetted this practice by allowing and
encouraging Kim and Signature to do so for the purposes of
generating additional volume business for Citadel’s ‘trust mill.’”
The Citadel defendants “encouraged and authorized Kim and
Signature to hold themselves out as ‘Citadel Associates’ and
‘Certified Citadel Estate Planners[,]’ and Kim and Signature did
so.” The defendants engaged in unfair business practices by
6
entering “into a joint enterprise for the unauthorized practice of
law and deception of clients who think they are engaging
legitimate legal services.” The Simonses alleged they “lost their
inheritance and supportive funds from their father Herbert,
which funds should be paid by Defendants as restitution.” They
also sought a preliminary and permanent injunction to prevent
the Signature and Citadel defendants from engaging in unlawful
and unfair business practices.
B. The Demurrers to the First Amended Complaint
On June 18, 2021 the Signature defendants filed a
demurrer to the first amended complaint. As to the first cause of
action for unfair business practices, the Signature defendants
argued the Simonses did not have standing because they were
not clients of the Signature defendants. Further, the unfair
business practices claim failed because it was premised on the
alleged unauthorized practice of law, and the Simonses “do not
have a private cause of action or standing to assert this claim.”
The Signature defendants also argued the Simonses’ “alleged
expected future inheritance is conjectural and does not constitute
an injury-in-fact” under section 17204.
On June 21, 2021 the Citadel defendants filed their
demurrer, in which they similarly challenged the Simonses’
standing to assert their UCL causes of action. The Citadel
defendants also maintained they did not owe a duty to the
Simonses as potential beneficiaries because they had not alleged
Herbert’s testamentary intent. The Citadel defendants argued
further Hales is an active member of the California State Bar,
and therefore, they did not commit the unauthorized practice of
law; there is no statutory basis for a claim of aiding and abetting
7
the unauthorized practice of law; and the Simonses lacked
standing because they did not obtain any services from the
Citadel defendants.
C. The Trial Court’s Rulings and Judgments
After a hearing, on September 29, 2021 the trial court4
sustained both demurrers to the first cause of action for
violations of the UCL and the second cause of action for the
unauthorized practice of law without leave to amend. The court
found the Simonses did not have standing to bring a UCL cause
of action because they did not use the defendants’ services.
Further, the Simonses did not have standing to sue the Signature
defendants for the unauthorized practice of law or to sue the
Citadel defendants for “‘aiding and abetting’” Kim because the
Simonses did not allege Herbert intended to provide a benefit to
Jordan and Benjamin through the 2019 estate plan and,
therefore, the Signature and Citadel defendants did not owe them
a duty.5 The trial court also sustained the demurrers to the third
4 Judge Landin.
5 The trial court explained that a plaintiff could bring a
cause of action for the unauthorized practice of law by alleging
an unlicensed practitioner provided negligent work that caused
injury to an intended beneficiary, citing Biakanja v. Irving (1958)
49 Cal.2d 647. In sustaining the initial demurrers to the second
cause of action for the unauthorized practice of law with leave to
amend, the trial court likewise found the Simonses had failed to
allege the Signature and Citadel defendants owed them a duty as
intended beneficiaries because they did not allege Herbert’s
intent to benefit them. In denying leave to amend in sustaining
the demurrers to the first amended complaint, the court
8
cause of action for tortious interference with contract and the
fourth cause of action for tortious interference with prospective
economic advantage with leave to amend.
The Simonses elected not to amend their complaint. On
November 2, 2021 the Signature defendants moved to dismiss the
third and fourth causes of action, and the Citadel defendants
filed a joinder in the motion. On February 14, 2022 the trial
court granted the unopposed motion to dismiss.
On March 10, 2022 the trial court6 signed and filed an
order of dismissal entering judgment in favor of the Citadel
defendants (March 10 judgment). On March 14, 2022 the court
signed and filed an order of dismissal entering judgment in favor
of the Signature defendants (March 14 judgment). On April 11,
2022 the Simonses filed their notice of appeal stating the appeal
was from a March 14, 2022 “[j]udgment of dismissal after an
order sustaining a demurrer.” On July 12, 2022 the Citadel
defendants moved to dismiss the appeal, arguing the Simonses
explained, “Plaintiffs were previously granted leave to amend;
they failed to cure the defects noted in the Complaint; and in
opposition, Plaintiffs have not shown a reasonable possibility of
stating a successful claim.” The Simonses do not assert in their
appellate briefs any arguments why the trial court erred in
sustaining the demurrers to their second cause of action for
unauthorized practice of law without leave to amend. They have
therefore abandoned the issue on appeal. (See Tiernan v.
Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211,
216, fn. 4 [issue not raised on appeal “deemed waived”]; Swain v.
LaserAway Medical Group, Inc. (2020) 57 Cal.App.5th 59, 72
[“‘“‘Issues not raised in an appellant’s brief are [forfeited] or
abandoned.’”’”].)
6 Judge Lawrence P. Riff.
9
failed to file a notice of appeal as to the March 10 judgment, and
the period to timely appeal from that judgment had expired.
DISCUSSION
A. We Have No Jurisdiction To Consider the Simonses’ Appeal
from the March 10, 2022 Judgment
“Once a notice of appeal is timely filed, the liberal
construction requirement compels a reviewing court to evaluate
whether the notice, despite any technical defect, nonetheless
served its basic function—to provide notice of who is seeking
review of what order or judgment—so as to properly invoke
appellate jurisdiction.” (K.J. v. Los Angeles Unified School Dist.
(2020) 8 Cal.5th 875, 883; accord, In re Joshua S. (2007)
41 Cal.4th 261, 272 [“‘notices of appeal are to be liberally
construed so as to protect the right of appeal if it is reasonably
clear what [the] appellant was trying to appeal from, and where
the respondent could not possibly have been misled or
prejudiced’”]; see Cal. Rules of Court, rule 8.100(a)(2) [“The notice
of appeal must be liberally construed. The notice is sufficient if it
identifies the particular judgment or order being appealed.”].)
But “[t]he policy of liberally construing a notice of appeal
in favor of its sufficiency) . . . does not apply if the notice is so
specific it cannot be read as reaching a judgment or order not
mentioned at all.” (Filbin v. Fitzgerald (2012)
211 Cal.App.4th 154, 173; accord, DeZerega v. Meggs (2000)
83 Cal.App.4th 28, 43 [“‘[W]here several judgments and/or orders
occurring close in time are separately appealable (e.g., judgment
and order awarding attorney fees), each appealable judgment and
order must be expressly specified—in either a single notice of
10
appeal or multiple notices of appeal—in order to be reviewable on
appeal.’”]; Norman I. Krug Real Estate Investments, Inc. v.
Praszker (1990) 220 Cal.App.3d 35, 47 [“The rule favoring
appealability in cases of ambiguity cannot apply where there is a
clear intention to appeal from only part of the judgment or one of
two separate appealable judgments or orders.”].) “‘“Our
jurisdiction on appeal is limited in scope to the notice of appeal
and the judgment or order appealed from.” [Citation.] We have
no jurisdiction over an order not mentioned in the notice of
appeal.’” (In re J.F. (2019) 39 Cal.App.5th 70, 75; accord, Faunce
v. Cate (2013) 222 Cal.App.4th 166, 170.)
In their April 11, 2022 notice of appeal, the Simonses
stated they were appealing from the March 14 judgment in favor
of the Signature defendants. In their May 24, 2022 amended civil
case information statement, the Simonses likewise wrote “Mar[.]
14, 2022” as the “date of entry of judgment or order appealed
from.” Although they attached both the March 10 and March 14
judgments to their amended civil case information statement,
this did not confer jurisdiction on this court to consider the
March 10 judgment because the notice of appeal only specified
they were appealing from the March 14 judgment. (Morton v.
Wagner (2007) 156 Cal.App.4th 963, 967 [“Despite appellant’s
statement to the contrary in the civil case information statement,
he has not appealed the judgment granting the petition for an
injunction. His notice of appeal identifies only the order denying
the motion for reconsideration and designating him a vexatious
litigant as the order from which the appeal is taken. While a
notice of appeal must be liberally construed, it is the notice of
appeal which defines the scope of the appeal by identifying the
particular judgment or order being appealed.”].)
11
In their opposition to the motion to dismiss the appeal, the
Simonses admitted they only “identified the latter of the
judgments of dismissal” (the March 14 judgment), but they
argued “[a]ny party that received a Notice of Appeal of a
judgment of dismissal following sustaining of demurrer is on
notice that the order sustaining the demurrer is subject to review
pursuant to that Notice of Appeal.” This argument misses the
point. First, the notice of appeal only identified the March 14
judgment against the Signature defendants, which by no means
placed the Citadel defendants on notice the Simonses were
appealing the court’s order sustaining the Citadel defendants’
demurrer and entry of the March 10 judgment. Moreover,
because the Simonses in their notice of appeal failed to mention
the March 10 judgment, instead clearly specifying their intent to
appeal from the March 14 judgment, we lack jurisdiction to
consider the Simonses’ appeal from the March 10 judgment.
(Morton v. Wagner, supra, 156 Cal.App.4th at p. 967; see In re
J.F., supra, 39 Cal.App.5th at p. 75; Faunce v. Cate, supra,
222 Cal.App.4th at p. 170.) Accordingly, we grant the Citadel
defendants’ motion to dismiss the appeal as to them.
B. The Trial Court Did Not Err in Sustaining the Signature
Defendants’ Demurrer Without Leave To Amend
1. Standard of review
“‘In reviewing an order sustaining a demurrer, we examine
the operative complaint de novo to determine whether it alleges
facts sufficient to state a cause of action under any legal theory.’”
(Mathews v. Becerra (2019) 8 Cal.5th 756, 768; accord, T.H. v.
Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.)
When evaluating the complaint, “we assume the truth of the
12
allegations.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204,
209; accord, Lee v. Hanley (2015) 61 Cal.4th 1225, 1230.)
“However, we are not required to accept the truth of the factual
or legal conclusions pleaded in the complaint.” (Marina Pacific
Hotel and Suites, LLC v. Fireman’s Fund Insurance Co. (2022)
81 Cal.App.5th 96, 105; accord, Mathews, at p. 768 [“‘“‘“We treat
the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions or conclusions of fact or law.”’”’”].)
2. The Simonses lack standing to bring an Unfair
Competition Law cause of action
“The UCL prohibits unfair competition, defined as ‘any
unlawful, unfair or fraudulent business act or practice.’
(§ 17200.) The statute’s ‘purpose is to protect both consumers
and competitors by promoting fair competition in commercial
markets for goods and services.’” (Abbott Laboratories v.
Superior Court (2020) 9 Cal.5th 642, 651.) “‘By proscribing “any
unlawful” business practice, “section 17200 ‘borrows’ violations of
other laws and treats them as unlawful practices” that the unfair
competition law makes independently actionable.’” (Abbott, at
p. 651; accord, De La Torre v. CashCall, Inc. (2018) 5 Cal.5th 966,
980; Law Offices of Matthew Higbee v. Expungement Assistance
Services (2013) 214 Cal.App.4th 544, 555 (Higbee) [“we see no
reason why the alleged violation of statutes concerning the
unauthorized practice of law cannot serve as a predicate for
Higbee’s UCL action”].) “In addition, a practice that is unfair or
fraudulent may be the basis for a UCL action even if the conduct
is ‘not specifically proscribed by some other law.’” (Loeffler v.
Target Corp. (2014) 58 Cal.4th 1081, 1125; accord, Zhang v.
Superior Court (2013) 57 Cal.4th 364, 370.) “‘Actions for relief’
13
under the UCL may be brought by various government officials
and ‘by a person who has suffered injury in fact and has lost
money or property as a result of the unfair competition.’” (McGill
v. Citibank, N.A. (2017) 2 Cal.5th 945, 954; accord, Abbott, at
p. 652.)
In 2004 the voters approved Proposition 64 (Gen. Elec.
(Nov. 2, 2004)), which substantially modified the standing
requirements for private parties to bring UCL claims, stating in
its preamble that the measure was intended to redress abuses by
private attorneys who “‘[f]ile frivolous lawsuits as a means of
generating attorney’s fees without creating a corresponding
public benefit,’ ‘[f]ile lawsuits where no client has been injured in
fact,’ ‘[f]ile lawsuits for clients who have not used the defendant’s
product or service, viewed the defendant’s advertising, or had any
other business dealing with the defendant,’ and ‘[f]ile lawsuits on
behalf of the general public without any accountability to the
public and without adequate court supervision.’” (Californians
for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 228,
quoting Prop. 64, § 1, subd. (b)(1)-(4).) The measure amended the
standing requirements in section 17204, which previously
authorized lawsuits by any person “‘acting for the interests of
itself, its members or the general public,’” and replaced the
language with the phrase, “‘who has suffered injury in fact and
has lost money or property as a result of unfair competition.’”
(Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 788 (Clayworth);
compare former § 17204, as amended by Stats. 1993, ch. 926, § 2
with § 17204, as amended by Prop. 64, § 3, as approved by voters,
Gen. Elec. (Nov. 2, 2004).)
To satisfy Proposition 64’s more stringent standing
requirements, a plaintiff must “(1) establish a loss or deprivation
14
of money or property sufficient to qualify as injury in fact, i.e.,
economic injury, and (2) show that that economic injury was the
result of, i.e., caused by, the unfair business practice or false
advertising that is the gravamen of the claim.” (Kwikset Corp. v.
Superior Court (2011) 51 Cal.4th 310, 322 (Kwikset); see Zhang v.
Superior Court, supra, 57 Cal.4th at p. 372 [“[T]o bring a UCL
action, a private plaintiff must be able to show economic injury
caused by unfair competition.”].) Proposition 64 expressly
incorporates the federal law standing requirements for “injury in
fact.” (Kwikset, at p. 322.) “Under federal law, injury in fact is
‘an invasion of a legally protected interest which is (a) concrete
and particularized, [citations]; and (b) “actual or imminent, not
‘conjectural’ or ‘hypothetical,’” [citation].’ [Citations.]
‘Particularized’ in this context means simply that ‘the injury
must affect the plaintiff in a personal and individual way.’”
(Kwikset, at pp. 322-323; accord, Ivanoff v. Bank of America, N.A.
(2017) 9 Cal.App.5th 719, 731-732 [plaintiff pleaded sufficient
injury in fact where she was billed for monthly loan payments
that exceeded what she should have owed].) Economic injury
from unfair competition may be shown in “innumerable ways,”
including where the plaintiff has “a present or future property
interest diminished” or is “deprived of money or property to
which he or she has a cognizable claim.” (Kwikset, at p. 323;
accord, Invanoff, at p. 731.)
The Signature defendants argue, as they did in the trial
court, that a plaintiff must have had business dealings with a
defendant to have standing in a consumer claim for unfair
business practices, relying on the language in Kwikset and
Clayworth describing the voters’ intent in approving Proposition
64. (See Kwikset, supra, 51 Cal.4th at p. 317 [“We conclude
15
Proposition 64 should be read in light of its apparent purposes,
i.e., to eliminate standing for those who have not engaged in any
business dealings with would-be defendants and thereby strip
such unaffected parties of the ability to file ‘shakedown lawsuits,’
while preserving for actual victims of deception and other acts of
unfair competition the ability to sue and enjoin such practices.”],
italics added; Clayworth, supra, 49 Cal.4th at p. 788 [intent of
Proposition 64 “was to confine standing to those actually injured
by a defendant’s business practices and to curtail the prior
practice of filing suits on behalf of ‘““clients who have not used
the defendant’s product or service, viewed the defendant’s
advertising, or had any other business dealing with the
defendant”’”], italics added.)
However, as the Simonses point out, the Supreme Court in
Kwikset, supra, 51 Cal.4th at page 322 articulated only two
requirements post-Proposition 64 for private UCL standing: that
the plaintiff show economic injury and that the economic injury
was caused by the defendant’s unfair business practice. Nowhere
in section 17204 or in Kwikset is there an additional requirement
that the plaintiff must have had “business dealings” with the
defendant to have standing. As the Court of Appeal explained in
Higbee, supra, 214 Cal.App.4th at page 563, “To be sure, the
Supreme Court in Clayworth v. Pfizer, Inc., supra, 49 Cal.4th 758observed that the intent of Proposition 64 was to restrict UCL
standing. (Id. at p. 788.) However, in commenting that the
voters had ‘plainly preserved standing for those who had had
business dealings with a defendant’ (ibid.), we do not believe the
court intended to engraft upon section 17204 a requirement that
all plaintiffs must, in every event, have engaged in business
dealings with a defendant in order to demonstrate UCL
16
standing.” (See Allergan, Inc. v. Athena Cosmetics, Inc. (Fed. Cir.
2011) 640 F.3d 1377, 1383, [“Proposition 64 did not add a
‘business dealings requirement’ to standing under
section 17204.”].)
Although we agree with the Simonses that there is no
“business dealings” requirement for private UCL standing, the
Simonses have still not alleged injury in fact under section 17204.
As the Simonses admit in their first amended complaint, “Jordan
and Alfers are presently engaged in litigation challenging the
purported 2019 trust. The outcome of that action may be
dispositive of certain or all damage claims presented here.” The
probate court has not determined whether the 2012 trust or the
2019 trust controls. Thus, the Simonses have not “establish[ed] a
loss or deprivation of money or property sufficient to qualify as
injury in fact” for UCL standing. (Kwikset, supra, 51 Cal.4th at
p. 322.)7 Rather, at this point, their potential injury as
beneficiaries under the 2012 trust is “‘conjectural’ or
‘hypothetical’” because the probate court may well decide Herbert
7 At oral argument, counsel for the Simonses argued that the
need to litigate the invalidity of the 2019 trust in the probate
court action constituted an injury in fact sufficient to support
UCL standing. We do not reach this contention because the
Simonses failed to make the argument in the trial court or in
their appellate briefing. Therefore, the issue is forfeited. (See
Tiernan v. Trustees of Cal. State University & Colleges, supra,
33 Cal.3d at p. 16, fn. 4; Swain v. LaserAway Medical Group,
Inc., supra, 57 Cal.App.5th at p. 72; see Quiles v. Parent (2018)
28 Cal.App.5th 1000, 1013 [“‘Failure to raise specific challenges
in the trial court forfeits the claim on appeal.’”].)
17
did not in 2019 rescind the 2012 trust instrument. (See id. at
pp. 322-323.)8
8 The Simonses alleged they had to bring their UCL claim
because the Signature and Citadel defendants refused to enter
into tolling agreements pending the outcome of the probate
litigation. But the four-year statute of limitations for a UCL
claim does not run until the cause of action has accrued. (§ 17208
[UCL claim “shall be commenced within four years after the
cause of action accrued”].) “[T]he UCL is governed by the
common law accrual rules to the same extent as any other
statute.” (Aryeh v. Canon Business Solutions, Inc. (2013)
55 Cal.4th 1185, 1196; accord, Ivanoff, supra, 9 Cal.App.5th at
p. 732.) “Traditionally at common law, a ‘cause of action accrues
“when [it] is complete with all of its elements”—those elements
being wrongdoing, harm, and causation.’ [Citations.] This is the
‘last element’ accrual rule: ordinarily, the statute of limitations
runs from ‘the occurrence of the last element essential to the
cause of action.’” (Aryeh, at p. 1191; accord, Paredes v. Credit
Consulting Services, Inc. (2022) 82 Cal.App.5th 410, 427.)
Because the Simonses have not yet suffered harm, their potential
UCL cause of action has not accrued to trigger the four-year
statute of limitations.
18
DISPOSITION
The appeal as to the Citadel defendants is dismissed. The
March 14, 2022 judgment in favor of the Signature defendants is
affirmed. The Citadel and Signature defendants are entitled to
recover their costs on appeal.
FEUER, J.
We concur:
PERLUSS, P. J.
ESCALANTE, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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