Chases v. Chases CA4/1 ( 2023 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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]
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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].”
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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
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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.
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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.)
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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.
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