Chases v. Chases CA4/1 ( 2023 )


Menu:
  • Filed 12/29/23 Chases v. Chases CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    BRENEN CHASES,                                                       D080930
    Plaintiff and Appellant,
    v.                                                          (Super. Ct. No.
    37-2019-00049169-CU-FR-CTL)
    ALEXANDER BUTLER CHASES III
    et al.,
    Defendants and Respondents.
    APPEAL from a judgment of the Superior Court of San Diego County,
    Joel R. Wohlfeil, Judge. Affirmed.
    Law Offices of James Swiderski and James Swiderski for Plaintiff and
    Appellant.
    Artiano Shinoff, Steven J. Barnes and Howard A. Kipnis for
    Defendants and Respondents.
    Plaintiff and appellant Brenen Chases appeals from a summary
    judgment in favor of defendants and respondents Alexander Butler Chases
    III and Craig Card on Brenen’s1 operative complaint for, inter alia,
    fraudulent concealment and financial elder abuse in which Brenen alleged in
    part that Butler took advantage of and influenced their grandmother Mary
    Nell Chases Lewis to create estate planning instruments in Butler’s favor.
    The trial court ruled that the statute of limitations barred the action, which
    was commenced in 2019, approximately seven years after Mary’s death in
    2012. Specifically, as to fraudulent concealment, the court ruled undisputed
    facts showed plaintiffs were on inquiry notice in that they suspected Butler
    was coercing and exerting undue influence on Mary starting in 2000; they
    suspected Butler was taking advantage of Mary’s impaired mental capacity
    to structure her estate planning in his favor from at least 2008; and that Alex
    Sr. had a suspicion of wrongdoing by no later than 2012. It ruled the
    remaining claims were either premised on the same conduct or alleged a
    conspiracy or aiding and abetting the same wrongdoing, which were barred
    by the same limitations periods.
    On appeal, Brenen concedes that Alex Sr.’s claims were barred by the
    statute of limitations. He argues Alex Sr.’s knowledge should not be imputed
    to him, and there is a triable issue of fact as to when he first learned of his
    rights and obtained standing to sue. Brenen contends the trial court erred by
    concluding there was no admissible evidence of Mary’s testamentary
    incapacity at the time she entered into the challenged estate plans; rather,
    there is evidence raising a triable issue of fact as to whether she had the legal
    capacity to sign off on testamentary gift planning beginning with her
    1      We adopt the parties’ designations of the appellant as Brenen and
    respondent Alexander Butler Chases as Butler, since they share the same
    surname and also because Butler’s first name is the same as their father,
    plaintiff Alexander Chase, who we will refer to as Alex Sr. Similarly, for
    clarity we refer to Mary Nell Chases Lewis as Mary.
    2
    November 1996 will. Brenen further contends this court has discretion to
    consider new theories—equitable relief and intentional interference with
    prospective inheritance—based on legal questions determinable from facts
    that are uncontroverted in the record that could not have been altered by the
    presentation of additional evidence. Defendants have moved to strike
    portions of Brenen’s reply brief for referring to matters outside the record.
    We deny defendants’ motion to strike, but disregard extra-record
    evidence cited in the briefs. On the merits, we conclude the court properly
    granted summary judgment based on the applicable statutes of limitation.
    Accordingly, we affirm the judgment.
    FACTUAL AND PROCEDURAL BACKGROUND
    The undisputed facts are taken from the parties’ separate statements of
    undisputed material facts (Code Civ. Proc., § 437c, subd. (b)) and other facts
    are set out in the light most favorable to Brenen, drawing all reasonable
    inferences in his favor. (California Medical Assn. v. Aetna Health of
    California Inc. (2023) 
    14 Cal.5th 1075
    , 1103.) This factual recitation
    recognizes that Brenen does not squarely challenge the trial court’s
    evidentiary rulings on Butler’s objections, and on summary judgment, this
    court disregards the evidence to which the objections were made and
    sustained. (Regents of University of California v. Superior Court (2018) 4
    
    3 Cal.5th 607
    , 618; Perry v. Bakewell Hawthorne, LLC (2017) 
    2 Cal.5th 536
    ,
    542.)2
    Mary is Alex Sr.’s mother and the grandmother to Alex Sr.’s sons
    Brenen and Butler. In 2004, Mary retained an estate planning attorney,
    Denise Polito, who drafted three wills for her at her direction during 2006,
    2007 and 2008. Each of these wills revoked all prior wills and codicils. Alex
    Sr. had vetted attorney Polito to make sure his mother’s affairs were handled
    correctly.
    By 2006, Mary was 86 years old, in frail health, feeble-minded and
    susceptible to influence. In 2007, she was diagnosed with Alzheimer’s
    dementia, and was forgetting things such as doctor’s appointments and
    hospital visits. In September 2008, Judith Copeland took over as Mary’s
    estate planning attorney. Having observed Butler interact with Mary, Alex
    Sr. perceived Butler was more concerned about Mary’s money than her
    health, and that Butler’s unannounced visits were motivated by his desire to
    curry favor and manipulate her.
    When Mary died in June 2012, she had in place a will and trust that
    she had amended in October 2008 with Copeland’s assistance. Mary’s
    October 2008 will expressly revoked all prior wills and codicils, and left her
    property to the trustee of her trust to be distributed under its provisions.
    Neither of Mary’s sons nor Butler or his friend, Craig Card, were present at
    2      For example, the trial court sustained objections to portions of Alex
    Sr.’s declaration on which plaintiffs relied to contest many of defendants’
    material facts, particularly paragraph Nos. 2 and 8 of that declaration. It
    also sustained all of defendants’ objections to the declaration of plaintiffs’
    counsel, which targeted many of the exhibits he attached and referenced as
    “true and correct copies . . . maintained by [his] office,” including Mary’s
    medical records. Defendants did not object to excerpts of Butler’s deposition.
    Nor did they object to Alex Sr.’s declaration concerning Mary’s 2007
    Alzheimer’s diagnosis, so we regard that fact as undisputed.
    4
    meetings where those instruments were conceived and signed. In July 2012,
    all of Mary’s trust beneficiaries and heirs, including Alex Sr., were served
    with a Probate Code section 16061.7 notice, informing them among other
    things that any action to contest Mary’s trust would be time-barred if not
    filed within 120 days of the notification.
    Within a few weeks after Mary’s death, Alex Sr. retained counsel. His
    lawyer obtained copies of all of Mary’s estate planning instruments and gave
    them to Alex Sr. Alex Sr. also attempted to obtain all of Mary’s medical
    records to confirm his belief that due to her medical condition she was
    coerced into making decisions, about which he had spoken with different
    attorneys as early as 2007. He advised both the trustee of Mary’s trust and
    attorney Polito that Mary’s trust had been created and executed after Mary
    had been diagnosed with dementia, calling into question her capacity to make
    a new estate plan. Alex Sr. repeatedly requested that the trustee consider
    Mary’s mental capacity when the 2008 trust was created, that Butler had
    been unduly influencing Mary and had withdrawn funds from her without
    her knowledge and consent, and that the trustee should look into whether
    some of Mary’s assets were missing. Ultimately, Alex Sr. did not file a trust
    contest. The trustee obtained court approval of her trust accounting and plan
    of final distribution, and Alex Sr. signed a stipulation that waived his right to
    pursue the trustee of Mary’s trust for the trustee’s work. In September 2015,
    the court entered a stipulated order of final distribution of Mary’s estate.
    In December 2018, Alex Sr. discovered a holographic will that Mary
    had signed and dated in 1993, when she was in good health and of sound
    mind. The 1993 will was located at a property Alex Sr. had inherited in 2016,
    in a box labeled with Butler’s name and inside Butler’s company’s corporate
    books. The 1993 will differed from Mary’s 2008 estate plan in that Brenen
    5
    was to receive a portion of Mary’s estate and other accounts of Mary’s were
    not gifted to Butler.
    In September 2019, Alex Sr. and Brenen filed a lawsuit against Butler
    and Card alleging claims for fraudulent concealment of Mary’s 1993 will,
    financial elder abuse, conversion, conspiracy and aiding and abetting. They
    eventually filed a second amended complaint eliminating the conversion
    claim. They alleged Butler had a history of lying to obtain advantages over
    others, including Mary, and that he began taking advantage of Mary’s
    memory problems that started in the mid-2000’s. They alleged Mary’s 1993
    will reflected her true intentions about how to distribute her assets, and that
    Butler concealed that will so as to influence Mary to create a new estate plan
    in his favor. Plaintiffs alleged that by mid-2007 Mary was suffering from
    probable Alzheimer’s dementia, and was unable to understand the nature of
    what she was signing or resist Butler’s undue influence. Thus, they alleged,
    Mary did not have the capacity to create her 2008 estate plan, which was
    only the result of Butler’s influence.
    Alex Sr. later testified at his deposition that as early as 2000, he
    believed that Butler had been coercing Mary to make financial decisions to
    Butler’s benefit, and in 2007 he complained to Mary’s attorneys about her
    being unduly influenced to make such decisions in Butler’s favor.
    Defendants Butler and Card moved for summary judgment or
    alternatively summary adjudication of issues. They asserted each of the
    second amended complaint’s claims were time-barred by the applicable
    statutes of limitation and also by the doctrine of laches; Brenen lacked
    standing to assert the claims because he was neither Mary’s heir, successor-
    in-interest, nor residuary beneficiary of her trust; Mary’s 1993 will was not
    material because it was revoked many times over and because the assets of
    6
    the estate passed in accordance with the trust, not pursuant to probate of
    Mary’s will; defendants did not have knowledge or possession of the 1993
    will, the concealment of which did not proximately cause plaintiffs damage;
    and plaintiffs could not establish that Mary’s operative estate plan was
    procured by undue influence. Defendants relied in part on the second
    amended complaint’s allegations that while Alex Sr. did not have a copy of a
    prior estate plan, Mary had told him her true intentions to leave certain
    property to him and Brenen consistent with her 1993 will.3 They also relied
    on allegations that despite being aware of Mary’s intended distributions in
    1993 and their beliefs about Butler’s wrongdoing, plaintiffs were forced to
    accept Mary’s 2008 distributions because of the estate plan’s no contest
    clause, which was included at Butler’s insistence.
    As for the fraudulent concealment and financial elder abuse claims,
    defendants further argued Alex Sr. was estopped from asserting them by his
    2015 stipulation to the final disposition of Mary’s estate. Defendants
    supported their motion with their own declarations, as well as those from
    attorneys Polito and Copeland.
    3     Plaintiffs alleged: “Although [Alex Sr.] did not have a copy of any prior
    estate plan, Mary told him that she intended that [he] would receive real
    property located at Loring St. in San Diego, [Alex Sr.’s brother] would receive
    real property located at Seabright Ln. in San Diego, [Alex Sr.] would receive
    Mary’s residence, Brenen . . . would receive property located at Eastgate Mall
    in San Diego, and the Chases family would collectively share vacation
    property located in Mexico. Regarding Mary’s stock held by Merrill Lynch
    and Paine Webber, 1/4 would go to Butler, 1/4 would go to [Alex Sr.’s
    brother], 1/4 would go to [Alex Sr.], and 1/4 would be shared between the
    remaining grandchildren, including Brenen, who was also supposed to receive
    Mary’s AT&T stock. Other stock certificates were held in a safety deposit
    box, and [Alex Sr.’s] understanding was that such stocks bad already been
    assigned to various persons, including [Alex Sr., his brother], and Butler.”
    7
    In opposition, plaintiffs argued as to the statute of limitations that the
    delayed discovery rule applied because Alex Sr’s suspicion of wrongdoing had
    no evidentiary basis until he discovered the 1993 will, of which he had no
    legal possession and could not have known about until December 2018. They
    maintained the December 2018 discovery commenced the statute of
    limitations. They further argued Alex Sr.’s signing of the 2015 stipulation
    did not waive his claims of wrongdoing against Butler, but that it was “a very
    limited and narrow stipulation” that the accounting of Mary’s estate was
    proper and the proposed distribution conformed to her 2008 estate plan.
    They pointed out that the stipulation did not contain a Civil Code section
    1542 waiver. Plaintiffs argued defendants sought to have the court draw
    inferences in defendants’ favor, when all inferences were to favor their claims
    on summary judgment. Alex Sr. submitted his own declaration in opposition,
    attesting to his knowledge and addressing the facts set out in defendants’
    separate statement. Plaintiffs also submitted a declaration from their
    attorney attaching exhibits received in discovery and lodged in connection
    with the summary judgment opposition. They filed extensive objections to
    defendants’ evidence.
    In reply, defendants submitted their own objections to plaintiffs’
    evidence and moved to strike the challenged portions. In part, they again
    argued the 1993 will was immaterial because plaintiffs had made a binding
    judicial admission that they did not contest the 2008 trust due to its no
    contest clause, not because of the earlier will. Defendants also argued that
    the evidence showed Mary had executed additional estate planning
    documents revoking all prior wills, and plaintiffs presented no admissible
    evidence to support a claim that Mary’s 1993 intent was still her intent in
    2006 to 2008. Defendants argued there were no issues of material fact
    8
    requiring a trial on any of plaintiffs’ other claims; according to them,
    plaintiffs did not present admissible evidence demonstrating the invalidity of
    any of Mary’s later wills and admitted they did not contest Mary’s 2008 trust
    despite their belief she had set forth her intentions in a prior will; they
    presented no evidence either defendant had knowledge or possession of the
    1993 will; Brenen lacked standing to bring a financial elder abuse claim as he
    was not a beneficiary of Mary’s 2008 trust, which was the operative
    instrument; and there was no triable issue as to the time-bar of Alex Sr.’s
    claim for financial elder abuse or estoppel due to Alex Sr. signing the 2015
    stipulation.
    Following arguments on the matter, the trial court granted the motion,
    sustaining in part and overruling in part the parties’ evidentiary objections.
    The court ruled all of the causes of action were time-barred: “In this case, the
    undisputed facts demonstrate that starting in 2000, [p]laintiffs suspected . . .
    Butler was coercing and exerting undue influence on Mary so that she would
    make financial decisions benefitting . . . Butler. From at least 2008,
    [p]laintiffs suspected . . . Butler was taking advantage of Mary’s impaired
    mental capacity in order to structure her estate planning in his favor.
    Plaintiffs were on inquiry notice: it is undisputed Alex Sr. made repeated
    inquiries during this period. It is undisputed that Alex Sr. had a suspicion of
    wrongdoing by no later than 2012, and therefore had an incentive to litigate
    this issue at that time. . . . The discovery of Mary’s 1993 [w]ill in December,
    9
    2018 does not change or alter the initial suspicions. This action was not
    initiated until 2019 such that the limitations period has long since tolled.”4
    Plaintiffs filed this appeal from the ensuing judgment.
    DISCUSSION
    I. Standard of Review
    “Summary judgment is appropriate only ‘where no triable issue of
    material fact exists and the moving party is entitled to judgment as a matter
    of law.’ ” (Regents of University of California v. Superior Court, supra, 4
    Cal.5th at p. 618; Aguilar v. Atlantic Richfield Co. (2001) 
    25 Cal.4th 826
    ,
    850.) A triable issue of material fact exists only if “the evidence would allow
    a reasonable trier of fact to find the underlying fact in favor of the party
    opposing the motion in accordance with the applicable standard of proof.”
    (Aguilar, at p. 850.)
    “A defendant moving for summary judgment has the initial burden of
    presenting evidence that a cause of action lacks merit because the plaintiff
    cannot establish an element of the cause of action or there is a complete
    defense. [Citations.] If the defendant does so, the burden then shifts to the
    plaintiff to produce admissible evidence demonstrating a triable issue of
    material fact as to the claim or defense. [Citations.] Theories that are not
    4      The court’s ruling continued as to the financial elder abuse claim: “As
    discussed above, this limitations period expired prior to the 2019 filing date
    of this action because plaintiffs had notice and information of circumstances
    such that they were put on inquiry notice of the alleged wrongdoing.
    Summary adjudication [of the financial elder abuse cause of action] is
    granted on this basis and the court does not address defendants’ remaining
    arguments.” (Some capitalization omitted.) As for the conspiracy claim, the
    court ruled “the last overt act in the alleged conspiracy to unduly influence
    and coerce Mary would have necessarily occurred prior to her death in 2012
    [and thus] this limitations period has also expired.” (Some capitalization
    omitted.) It ruled the aiding and abetting claim was subject to the same
    limitations period as the underlying torts.
    10
    supported by evidence will not raise a triable issue.” (Aton Center, Inc. v.
    United Healthcare Ins. Co. (2023) 
    93 Cal.App.5th 1214
    , 1229.) If the
    defendant does not present sufficient evidence to meet his or her initial
    burden, the burden of production never shifts to the plaintiff. (Aguilar v.
    Atlantic Richfield Co., 
    supra,
     25 Cal.4th at p. 850.) In that event, the court
    must deny summary judgment. (Ibid.)
    We independently review the record and the court’s summary judgment
    ruling, applying the same legal standard as the trial court. (Samara v. Matar
    (2018) 
    5 Cal.5th 322
    , 338; Rheinhart v. Nissan North America, Inc. (2023) 
    92 Cal.App.5th 1016
    , 1024.) We liberally construe the evidence, resolving
    doubts in favor of plaintiffs as the opposing parties. (Aton Center, Inc. v.
    United Healthcare Ins. Co., 
    supra,
     93 Cal.App.5th at pp. 1229-1230.)
    In assessing the propriety of summary judgment, we apply the settled
    appellate presumption that the judgment is correct. (Denham v. Superior
    Court (1970) 
    2 Cal.3d 557
    , 564; Meridian Financial Services, Inc. v. Phan
    (2021) 
    67 Cal.App.5th 657
    , 684.) “Therefore, ‘ “ ‘[o]n review of a summary
    judgment, the appellant has the burden of showing error, even if he did not
    bear the burden in the trial court.’ ” ’ ” (Meridian, at p. 684.) The appellant
    must support each factual assertion with citations to the record, and may not
    refer to matters outside the appellate record. (Ibid.) “The reviewing court is
    not required to develop the parties’ arguments or search the record for
    supporting evidence and may instead treat arguments that are not developed
    or supported by adequate citations to the record as waived.” (Ibid.) We limit
    review to issues adequately raised and briefed. (Ibid.)
    11
    II. Defendants’ Motion to Strike
    With the above-referenced standards in mind, we address defendants’
    motion to strike portions of Brenen’s reply brief on appeal. Defendants
    specifically ask us to strike from that brief (1) certain references to Brenen’s
    deposition testimony, which is not in the appellate record; (2) the
    characterizations of that deposition testimony; and (3) Brenen’s assertion
    that an allegation in the complaint was a typographical error.
    Brenen opposes the motion, arguing it mischaracterizes his appellate
    position, which is based not on his deposition testimony, but on the absence of
    fair notice that defendants sought to bind him to a judicial admission of
    knowledge about the 1993 will and its intended distributions based on
    paragraph No. 57 of the unverified operative complaint. Brenen maintains
    defendants did not make such an argument below; they only argued he
    lacked standing to sue, and his reference to the deposition testimony is solely
    to show he would have had an explanation had he known of defendants’
    judicial admission argument and that defendants could not have relied on
    such an alleged admission by foregoing discovery, as they took his deposition
    on the matter. Brenen argues defendants should be estopped from moving to
    strike his reference to deposition testimony that Brenen would have proffered
    had he known of defendants’ position. Brenen also argues that defendants’
    assertions regarding his characterization of his own deposition testimony are
    themselves dependent on evidence outside the record.
    Brenen’s standing was not the sole issue raised against him by
    defendants in their summary judgment motion. They argued the statute of
    limitations barred the claims of both Brenen and Alex Sr.: “The undisputed
    facts establish that plaintiffs were on notice or suspected that they may have
    suffered injury as a result of defendant’s wrongdoing triggering the
    12
    applicable statutes of limitations well prior to the 2015 stipulated order of
    final distribution.” (Italics added; some capitalization omitted.) They also
    argued “Brenen’s right to contest the validity of Mary’s trust expired four
    years following Mary’s death.” As we point out (part III, infra), the motion
    put Brenen on notice that defendants were relying on the complaint’s
    admissions in asserting the statute of limitations bar to his causes of action.
    We deny defendants’ request to strike the portions of Brenen’s reply
    brief, notwithstanding Brenen’s concession that it contains references to his
    deposition transcript, which he did not include in the record. When an
    appellate brief references matters not supported by the record on appeal, we
    can simply ignore these references rather than strike them. (Connecticut
    Indemnity Co. v. Superior Court (2000) 
    23 Cal.4th 807
    , 813, fn. 2.) We will
    disregard assertions unsupported by record evidence in addressing the
    propriety of the summary judgment in defendants’ favor. This does not
    prevent us from considering what amounts to a forfeiture argument by
    Brenen: that defendants did not argue below he should be bound by a judicial
    admission about his awareness of Mary’s intended distributions and belief
    they were set forth in a prior will.
    III. Statute of Limitations/Delayed Discovery
    Brenen challenges the trial court’s ruling as to the statute of
    limitations. He concedes it properly determined that Alex Sr.’s claims were
    time-barred, but argues that the sole evidence on the issue involved Alex Sr.’s
    knowledge, not his own. According to Brenen, defendants presented no
    evidence tending to show he (Brenen) was aware of facts so as to put him on
    inquiry notice of his claim under Jolly v. Eli Lilly & Co. (1988) 
    44 Cal.3d 1103
    . Brenen contends he had no standing to assert claims related to Mary’s
    testamentary decisions or financial elder abuse until December 2018, when
    13
    Alex Sr. discovered the 1993 will granting him property, and there is a triable
    issue as to his standing and when he first learned of his rights under the
    1993 will. Relying on Kirby v. Albert D. Seeno Construction Co. (1992) 
    11 Cal.App.4th 1059
    , he argues that defendants’ reliance on paragraph No. 57 of
    the operative complaint—which he characterizes as ambiguous—cannot
    support summary judgment.
    Defendants respond that Brenen is bound by the unambiguous judicial
    admissions made in the operative complaint that at the time of Mary’s death
    he was aware of Mary’s intended distributions and the fact she had set them
    forth in a prior will (second amended complaint, paragraph Nos. 46, 57), and
    that he and his father had accepted the terms of Mary’s 2008 trust despite
    knowing of Butler’s wrongdoing, because that trust contained a no contest
    clause (second amended complaint, paragraph No. 56). They assert Brenen,
    who provided no opposing summary judgment declaration, did not dispute
    the allegations or explain why the court should have disregarded them.
    According to defendants, the admissions establish Brenen had standing to
    contest Mary’s 2008 trust and also rendered summary judgment appropriate
    based on the three-year statute of limitations for fraud. They cite authority
    for the proposition that “ ‘conclusive concessions’ of the truth of material facts
    made in the pleadings ‘may not be contradicted by the party whose pleadings
    are used against him or her.’ ”
    1. Legal Principles
    The statute of limitations, the period in which a plaintiff must bring
    suit or be barred, runs from the moment a claim accrues. (Rubenstein v. Doe
    No. 1 (2017) 
    3 Cal.5th 903
    , 911; Aryeh v. Canon Business Solutions, Inc.
    (2013) 
    55 Cal.4th 1185
    , 1191; Piedmont Capital Management, L.L.C. v.
    McElfish (2023) 
    94 Cal.App.5th 961
    , 968.) “Traditionally at common law, a
    14
    ‘cause of action accrues “when [it] is complete with all of its elements”—those
    elements being wrongdoing, harm, and causation.’ ” (Aryeh, at p. 1191.) But
    accrual of a cause of action will be postponed “until the plaintiff discovers, or
    has reason to discover, the cause of action, until, that is, he at least suspects,
    or has reason to suspect, a factual basis for its elements.” (Norgart v. Upjohn
    Co. (1999) 
    21 Cal.4th 383
    , 389; see also Fox v. Ethicon Endo-Surgery, Inc.
    (2005) 
    35 Cal.4th 797
    , 803 [“under the delayed discovery rule, a cause of
    action accrues and the statute of limitations begins to run when the plaintiff
    has reason to suspect an injury and some wrongful cause, unless the plaintiff
    pleads and proves that a reasonable investigation at that time would not
    have revealed a factual basis for that particular cause of action”]; see also
    Mills v. Forestex Co. (2003) 
    108 Cal.App.4th 625
    , 648 [“the limitations period
    begins to run when the circumstances are sufficient to raise a suspicion of
    wrongdoing”].) “A plaintiff need not be aware of the specific ‘facts’ necessary
    to establish the claim; that is a process contemplated by pretrial discovery.
    Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive
    to sue, [he] must decide whether to file suit or sit on [his] rights. So long as a
    suspicion exists, it is clear that the plaintiff must go find the facts; [he]
    cannot wait for the facts to find [him].” (Jolly v. Eli Lilly & Co., supra, 44
    Cal.3d at p. 1111.) Thus, “[t]he discovery rule only delays accrual until the
    plaintiff has, or should have, inquiry notice of the cause of action. . . .
    [P]laintiffs are required to conduct a reasonable investigation after becoming
    aware of an injury, and are charged with knowledge of the information that
    would have been revealed by such an investigation.” (Fox, at pp. 807-808;
    accord, Jolly, at p. 1114 [“the limitations period begins when the plaintiff
    suspects, or should suspect, that she has been wronged”].) The “resolution of
    the statute of limitations issue is normally a question of fact” and is a
    15
    question of law only “where the uncontradicted facts . . . are susceptible of
    only one legitimate inference.” (Jolly, at p. 1112; Moss v. Duncan (2019) 
    36 Cal.App.5th 569
    , 574.)
    When, as here, defendants move for summary judgment based on the
    statute of limitations, an affirmative defense, “they have the ‘burden of
    persuasion’ on that point, meaning they must convince the court that no
    reasonable trier of fact could find in plaintiffs’ favor on the statute of
    limitations issue. [Citation.] To accomplish that, defendants must first
    present evidence establishing that plaintiffs’ claims are time[-]barred.” (The
    Police Retirement System of St. Louis v. Page (2018) 
    22 Cal.App.5th 336
    , 340.)
    A party moving for summary judgment “may rely on the doctrine of judicial
    admission by utilizing allegations in the opposing party’s pleadings to
    eliminate triable issues of material fact.” (Myers v. Trendwest Resorts, Inc.
    (2009) 
    178 Cal.App.4th 735
    , 747; St. Paul Mercury Ins. Co. v. Frontier Pacific
    Ins. Co. (2003) 
    111 Cal.App.4th 1234
    , 1248.) “ ‘ “A judicial admission is a
    party’s unequivocal concession of the truth of a matter, and removes the
    matter as an issue in the case.” ’ ” (Perez v. Galt Joint Union Elementary
    School District (2023) 
    96 Cal.App.5th 150
    , 171.) For this purpose, a
    complaint is a pleading, and when it contains allegations of fact in support of
    a claim, the opposing party may rely on those factual statements as judicial
    admissions. (Myers, at p. 746; compare Myers, at p. 747 [summary judgment
    motion is not a pleading from which a judicial admission may be taken]; Betts
    v. City National Bank (2007) 
    156 Cal.App.4th 222
    , 235 [declining to apply
    doctrine because the “first proposed [probate] petition was not a filed
    pleading constituting a complaint or an answer in this proceeding”].) As
    defendants point out, “[f]acts established by pleadings as judicial admissions
    16
    ‘ “are conclusive concessions of the truth of those matters, are effectively
    removed as issues from the litigation, and may not be contradicted, by the
    party whose pleadings are used against him or her.” ’ ” (Perez, at p. 171.)
    If plaintiffs do not effectively dispute any of the relevant facts raised by
    the moving defendants, summary judgment is properly granted. (The Police
    Retirement System of St. Louis v. Page, supra, 22 Cal.App.5th at p. 340.) But
    the motion must be denied if the plaintiffs submit evidence that would allow
    a “reasonable trier of fact [to] find in plaintiffs’ favor on the statute of
    limitations issue.” (Ibid.)
    2. Defendants Met Their Initial Burden of Showing Brenen Was on Inquiry
    Notice of His Claims Relating to Mary’s Estate and Brenen Cannot Rebut that
    Showing
    Here, defendants maintain certain paragraphs of plaintiffs’ operative
    complaint constitute judicial admissions that warranted summary judgment
    based on the time-bar of the statute of limitations (Code Civ. Proc., § 338,
    subd. (d)).5 In their moving summary judgment papers they argued:
    “Plaintiffs admit to having knowledge and harboring suspicions of a prior will
    embodying Mary’s true intentions at the time of Mary’s death in 2012. The
    5      The statute of limitations for financial elder abuse is four years. (Welf.
    & Inst. Code, § 15657.7; Dennison v. Rosland Capital LLC (2020) 
    47 Cal.App.5th 204
    , 212.) The statute of limitations for fraud and related
    conspiracy or aiding and abetting is three years. (Code Civ. Proc., § 338,
    subd. (d); Filmservice Laboratories, Inc. v. Harvey Bernhard Enterprises, Inc.
    (1989) 
    208 Cal.App.3d 1297
    , 1309 [timeliness of conspiracy claim “must be
    determined by reference to the statute of limitations applicable to the
    underlying cause of action”]; American Master Lease LLC v. Idanta Partners,
    Ltd. (2014) 
    225 Cal.App.4th 1451
    , 1478 [statute of limitations for a cause of
    action for aiding and abetting a tort generally is the same as the underlying
    tort].) Mary died in 2012, and plaintiffs did not file their complaint until
    December 2019, relying on Alex Sr.’s 2018 discovery of her 1993 will as
    triggering accrual of their causes of action.
    17
    only thing plaintiffs subsequently discovered was the actual prior will, which
    Alex Sr. discovered among documents that had been in his sole possession
    since at least June 2012. But having formed the belief in the existence of a
    prior will as early as 2012, plaintiffs certainly were on inquiry notice of its
    existence, and their failure to search for and locate the will among documents
    in their sole possession and control since at least 2012 leads to the
    unmistakable conclusion that plaintiffs could and should have discovered the
    1993 will long before 2018 through the exercise of reasonable diligence, and
    that their claim for fraudulent concealment—not commenced until September
    2019—is time-barred.”6 (Some capitalization omitted.) According to
    6      In making this argument, defendants pointed to paragraph No. 56 of
    the second amended complaint, in which plaintiffs alleged: “Despite [Alex
    Sr.’s] repeated requests that . . . the trustee[ ] consider Mary’s mental
    capacity when the 2008 trust was created, [the trustee] refused to consider
    the possibility that Butler had been unduly influencing Mary. Further, [the
    trustee] refused to look into whether Butler had withdrawn funds and other
    assets from Mary without her knowledge and consent, or to take such gifts
    into account when she distributed the trust assets. [The trustee] also refused
    to look into whether certain assets of Mary’s were missing. ln short, [the
    trustee] failed to adequately prepare an accounting for the trust.
    Unfortunately, plaintiffs were essentially forced to accept the trust
    distributions because of the ‘no contest’ clause, which plaintiffs allege was
    only included at Butler’s insistence in order to prevent plaintiffs or any other
    beneficiary from attempting to locate the missing assets or questioning
    Butler’s suddenly larger distributions.” (Some capitalization omitted.)
    Defendants also pointed to paragraph No. 57 in which plaintiffs alleged:
    “Plaintiffs had been aware of Mary’s intended distributions, and they
    believed that Mary set her intentions forth in [a] previous will. [Alex Sr.]
    advised Mary’s attorneys and [the trustee] of this fact; however, the only
    estate plan which was ever located was the 2008 Trust, which [Alex Sr.]
    continued to argue had been created through the coercion and undue
    influence of Butler.” Plaintiffs did not dispute the facts based on paragraph
    No. 56, but purported to dispute the facts contained in paragraph No. 57
    based solely on Alex Sr.’s assertion that he “consistently expressed [his]
    18
    defendants, these “ ‘uncontradicted facts . . . [were] susceptible of only one
    legitimate inference,’ ” warranting summary judgment.
    The complaint’s factual allegations (footnotes 3 and 6 ante), combined
    with facts that plaintiffs admitted were undisputed, compel us to agree that
    defendants established that as of Mary’s death, Brenen knew of or at least
    suspected Butler’s asserted wrongdoing in influencing Mary to benefit
    himself at Brenen’s expense despite her mental health issues, and that
    Brenen also either knew or was on inquiry notice of a prior will in which
    Mary had left certain property and stock to him. Though the complaint
    alleges that at some point while Mary was alive, she only told Brenen’s father
    about her specific intent to give Brenen property located at Eastgate Mall as
    well as certain AT&T stock, it further alleges that both “plaintiffs” had been
    aware of these intended distributions and a prior will setting them out. The
    complaint alleges that Alex Sr. as early as April 2007 investigated why
    money had been taken from Mary’s account, learned Butler had done so, and
    under the circumstances, “[p]laintiffs were concerned about [the] 2008 Estate
    Plan and [an affidavit executed by Mary in 2007 explaining her intent]” in
    part because “the Eastgate Mall property was now identified as going to
    Butler and AT&T stock that was to be given to Brenen had seemingly
    disappeared.” In opposing summary judgment Brenen accepted as
    undisputed defendants’ assertion that plaintiffs alleged “ ‘[p]laintiffs were . . .
    forced to accept’ the terms of Mary’s Trust despite their belief of Butler’s
    wrongdoing . . . .” While that response itself is not a judicial admission
    (Myers v. Trendwest Resorts, Inc., 
    supra,
     178 Cal.App.4th at p. 747), Brenen
    presented no opposing summary judgment declaration of his own, or other
    distrust of the 2008 Trust and did not believe Mary was in her right mind
    when she created the 2008 [sic].”
    19
    evidence to dispute his admitted knowledge or belief. But that Brenen failed
    to submit his own evidence is of no moment in the face of a judicial
    admission: He “ ‘cannot offer contrary evidence unless permitted to amend,
    and a judgment may rest in whole or in part upon the admission without
    proof of the fact.’ ” (Valerio v. Andrew Youngquist Construction (2002) 
    103 Cal.App.4th 1264
    , 1272.)
    We reject Brenen’s argument in reply suggesting that on this record he
    learned nothing “to arouse his suspicions” and it remains an issue of fact
    whether a reasonable investigation could have located the 1993 will, as it was
    not in his constructive possession or control. For the statute of limitations
    period to commence under the discovery rule, Brenen was not required to
    “know the ‘specific “facts” necessary to establish’ the cause of action . . . but,
    within the applicable limitations period, he must indeed seek to learn the
    facts necessary to bring the cause of action in the first place—he ‘cannot wait
    for’ them ‘to find’ him and ‘sit on’ his ‘rights’; he ‘must go find’ them himself if
    he can and ‘file suit’ if he does [citation].” (Norgart v. Upjohn Co., supra, 21
    Cal.4th at p. 398, italics added.) Given his admitted awareness of a prior will
    of Mary’s benefiting him and his belief that Butler had engaged in
    wrongdoing in connection with Mary’s estate, it did not delay accrual that
    Brenen might not have appreciated the full extent of the damages to him, i.e.,
    all of the details of Mary’s 1993 will. (Pooshs v. Philip Morris USA, Inc.
    (2011) 
    51 Cal.4th 788
    , 797 [“Must the plaintiff sue even if doing so will
    require the jury to speculate regarding prospective damages? Or can the
    plaintiff delay suit until a more accurate assessment of damages becomes
    possible? Generally, we have answered those questions in favor of prompt
    litigation, even when the extent of damages remains speculative”].) We
    cannot disregard the import of the factual allegations demonstrating
    20
    Brenen’s suspicions of Butler’s wrongdoing in connection with Mary’s
    property disposition contrary to a prior will in our consideration of summary
    judgment’s propriety.
    We additionally reject Brenen’s reliance on Kirby v. Albert D. Seeno
    Construction Co., supra, 
    11 Cal.App.4th 1059
     to argue the defendants’
    argument is a “contortion of an ambiguous statement of the pleadings.”
    Brenen does not discuss Kirby in any detail, but the case points out that
    summary judgment should not be based on tacit or fragmentary concessions
    contradicted by other credible evidence, mistaken legal conclusions in the
    complaint, or mistaken answers to discovery. (Id. at pp. 1066-1067 [“When
    the facts submitted in opposition to a summary judgment motion indicate the
    existence of a material factual issue, summary judgment should not be
    entered based on mistaken legal conclusions in the complaint. [Citation.]
    Summary judgment is also inappropriate where the opposing party submits
    evidence indicating that a mistake was made”].) Plaintiffs’ allegations are
    not legal conclusions, nor did Brenen submit evidence by way of his own
    declaration or plaintiffs’ counsel’s that he mistakenly included the allegations
    concerning Brenen’s knowledge of Mary’s prior will and Butler’s wrongdoing.
    Finally, we find unavailing Brenen’s attempt to urge that he was not on
    notice that defendants were holding him to these allegations as judicial
    admissions, but that defendants had “buried [the argument] among the
    evidence exclusively relating to [Alex Sr.’s] knowledge” and raised it for the
    first time on appeal. As quoted above, defendants’ summary judgment
    arguments characterized the allegations as admissions, and their separate
    statement of material facts pointed specifically to these allegations. This was
    sufficient to impart notice to Brenen of an argument that he was bound by
    his complaint’s admissions.
    21
    IV. Materiality of the 1993 Will
    Brenen points out that the trial court alternatively ruled, consistent
    with defendants’ summary judgment arguments, that the 1993 will or its
    alleged concealment was irrelevant to his rights and “not a material fact as a
    matter of law” (italics omitted) as that will was superseded several times over
    by Mary’s new estate planning instruments. He argues the court implicitly
    ruled there was no factual issue as to Mary’s capacity in 2006 and beyond to
    enter into new wills, but that the undisputed evidence she was diagnosed in
    2007 with Alzheimer’s dementia,7 combined with Butler’s deposition
    testimony pertaining to Mary’s gift to him of a bank account containing
    $880,000, creates a triable issue about her competency in entering into the
    later estate plans, precluding summary judgment.
    Because this ruling was alternate to the court’s statute of limitations
    ruling, which disposed of all of the causes of action, we need not address
    these contentions. Even if the 1993 will was a concealed material fact (that
    is, that the evidence suggests Mary was suffering from testamentary
    incapacity at the time she executed her later estate plans), the claims
    independently remain time-barred by the statute of limitations.
    V. Brenen’s Reliance on New Theories
    7     Brenen argues based on Sweetwater Union High School District v.
    Gilbane (2019) 
    6 Cal.5th 931
     that medical record evidence of Mary’s
    Alzheimer’s dementia diagnosis—ruled inadmissible by the trial court—
    would nevertheless be admissible at trial and should be considered on the
    question. But defendants did not object to Alex Sr.’s statement in his
    declaration that Mary had been diagnosed with Alzheimer’s dementia in
    2007, so that diagnosis is undisputed for summary judgment purposes. We
    need not address the evidentiary legal point based on Sweetwater Union.
    22
    Brenan finally contends the evidence and the operative complaint8
    support two other cognizable claims: (1) an equitable claim for a constructive
    trust over the proceeds of the estate distribution made under authority of the
    1993 will, which is not dependent on evidence of Butler’s wrongdoing and (2)
    a claim for “interference with prospective inheritance,” which assertedly does
    not require an analysis of whether Butler owed Brenen a duty to reveal the
    existence of Mary’s 1993 will. According to Brenen, the facts of Butler’s
    knowledge of Mary’s 1993 will, and evidence of his course of conduct in
    having him added to her estate plan while she suffered from Alzheimer’s
    dementia, “establish a prima facie case of intentional interference with
    inheritance.”
    Apart from In re Walker’s Estate (1911) 
    160 Cal. 547
    , cited as support
    for his constructive trust claim, and Beckwith v. Dahl (2012) 
    205 Cal.App.4th 1039
    , in which the Court of Appeal recognized the tort of intentional
    interference with expected inheritance under limited circumstances,9 Brenen
    does not explain with case authority how procedurally he should be permitted
    to raise new claims to defeat summary judgment. Nor does he cite any such
    authority in reply; he merely argues the new legal theories are supported by
    the same evidence, and “[n]o prejudice would result to [defendants] from
    8      Brenen argues as to one of the claims that “the complaint would
    support [it] on remand.” To the extent he points only to the complaint’s
    allegations as support, it is settled that “[a] party cannot avoid summary
    judgment by relying on ‘the allegations . . . of its pleadings.’ ” (Aton Center,
    Inc. v. United Healthcare Ins. Co., supra, 93 Cal.App.5th at p. 1237.)
    9      Under Beckwith v. Dahl, supra, 
    205 Cal.App.4th 1039
    , to maintain
    such a claim “the defendant’s tortious conduct must have induced or caused
    the testator to take some action that deprives the plaintiff of his expected
    inheritance” and the plaintiff must have no adequate remedy in probate
    court. (Id. at pp. 1057-1058.)
    23
    consideration of the new legal theories as an additional basis upon which
    [his] claims might survive summary judgment.” (Italics omitted.)
    Of course, because the pleadings frame the issues on a summary
    judgment motion, a moving defendant’s burden only requires he or she
    negate theories of liability alleged in the complaint, not on a theoretical
    possibility outside the pleadings. (Ahn v. Stewart Title Guaranty Co. (2023)
    
    93 Cal.App.5th 168
    , 182.) Thus, “a party cannot avoid summary judgment by
    relying on theories that are not alleged in the pleadings. [Citation.] ‘[A]
    plaintiff [or cross-complainant] wishing “to rely upon unpleaded theories to
    defeat summary judgment” must move to amend the complaint before the
    hearing.’ ” (Champlin/GEI Wind Holdings, LLC v. Avery (2023) 
    92 Cal.App.5th 218
    , 224.) Brenen has not shown he made any such request. We
    reject his effort to avoid summary judgment by asserting two new theories on
    appeal.
    DISPOSITION
    The judgment is affirmed.
    O’ROURKE, J.
    WE CONCUR:
    HUFFMAN, Acting P. J.
    CASTILLO, J.
    24
    

Document Info

Docket Number: D080930

Filed Date: 12/29/2023

Precedential Status: Non-Precedential

Modified Date: 12/30/2023