Spears v. Spears ( 2023 )

Filed 12/19/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
BRIAN SPEARS,
Plaintiff and Appellant,
A164622
v.
THERESE SPEARS, as (Humboldt County
Trustee, etc., Super. Ct. No.
PR2100106)
Defendant and
Respondent.
Brian Spears filed a petition seeking to be named as a
creditor of his deceased father’s trust; to remove his step-mother,
Therese Spears, from her position as trustee; and for an
accounting.1 The trial court dismissed Brian’s petition on the
basis that he did not file an amended pleading after the court
sustained Therese’s demurrer to the petition with leave to
amend. Brian appeals, contending he did file an amended
pleading, reasserting only his claim to be named as a creditor of
the trust. We agree.
Therese offers several alternative rationales for upholding
the order of dismissal. We agree that the statute of limitations
bars recovery on one of the alleged agreements on which Brian
1 Where necessary to avoid confusion, we use first names to
refer to individuals who share the same last name.
1
bases his creditor’s claim, but we reject Therese’s arguments as to
the other alleged agreement. We will therefore reverse the
judgment and remand with instructions for further proceedings.
BACKGROUND
Brian’s father, James, created a revocable trust in 2018 and
funded it with his separate property. The trust provides for a
bequest to Brian of $1,000. The other beneficiaries of the trust
are Therese’s and James’ other children, step-children, and
grandchildren. James died in October or November 2020. It
appears that no one opened a probate proceeding to administer
James’ estate. Upon James’ death, Therese became the successor
trustee.
In April 2021, Brian filed a petition to remove Therese from
her position as trustee, for an accounting of the trust, and to be
added as a creditor of the trust pursuant to Probate Code sections
19000, 19050, and 19150–19151.2 Brian filed the petition from
prison. Brian alleged in the petition that he had no faith that
Therese would give him his bequest under the trust. As to his
creditor’s claim, Brian alleged that Therese owed him a total of
$40,000 based on two agreements: $30,000 after Therese failed
to pay Brian and his wife certain payments received from the
State of California for the care of James’ and Therese’s
granddaughter, Janaea; and $10,000 after Therese bought a
modular home from Brian. Brian further alleged that Therese’s
2 Subsequent undesignated statutory citations are to the
Probate Code.
2
debts to him and his estranged wife were community property
debts and should be included in the debts of James’ trust.
Therese demurred, arguing that she paid Brian his $1,000
bequest after he filed his petition, so he no longer had standing to
request an accounting or to remove her. She also argued Brian
could not state a claim against the trust based on Therese’s
personal debts. Additionally, Therese argued Brian had not
described the agreements giving rise to her alleged debts with
sufficient specificity.
In his opposition to Therese’s demurrer, Brian argued his
creditor’s claim was pursuant to sections 19000, 19050, and
19150–19151 and covered by sections 18200, 19003–19005,
19008, 19040, 19053, and 19100. Brian also moved to strike the
demurrer because he alleged Therese had falsely represented
that she paid Brian his bequest before filing the demurrer when
in reality she paid it afterwards.
At the hearing, Brian conceded that he had received his
$1,000 bequest and only contested Therese’s demurrer as to his
creditor’s claim. Therese argued that Brian needed to plead the
creditor claim with more specificity, to make clear when the debts
were incurred and that the alleged debts were chargeable to
James. The trial court denied Brian’s motion to strike and
sustained Therese’s demurrer with leave to amend as to his
creditor claim.
A couple months later, Brian filed a document titled
“Creditor’s Claim,” using the same case number that was
assigned to his original petition. Brian again asserted the claim
3
was pursuant to sections 19000 and 19150–19151. Brian’s
creditor’s claim rested on the same two oral agreements alleged
in his original petition, although he alleged slightly different
amounts owed than alleged in the original petition. As to the
first agreement, he alleged that James and Therese received
$60,000 from the State of California for the care of Janaea
Spears—money that was intended for Brian and his estranged
wife. On January 15, 2012, James orally promised to repay the
money that was due in periodic payments and that if he died
before paying off the debt, the debt would become due and
payable in full.
Regarding the second alleged agreement, Brian alleged
that sometime in 1996 or 1997, he made an oral agreement with
James and Therese to sell them a modular home. James and
Therese agreed to pay Brian and his wife $30,000 in monthly
payments of $300. James agreed that if he died before paying the
entire debt, the debt would become due and payable in full.3
Therese filed an objection to Brian’s creditor’s claim. She
never argued that Brian’s claim was not an amended petition.
Instead, she argued the trial court should reject Brian’s petition
because he needed to file his claim against James’ estate, not the
trust, and his claims were barred by the statute of limitations
and statute of frauds. Brian filed a written reply.
3 Brian asserted that he and his estranged wife were each
entitled to half the total of $90,000 owed on the two alleged debts,
or $45,000.
4
At a hearing, Brian for first time argued that section 850
permitted his claim. The trial court took the matter under
submission to consider section 850. The trial court sustained
Therese's demurrer with leave to amend and then dismissed the
matter with prejudice on February 14, 2022, after Brian declined
to file an amended petition.
DISCUSSION
I. Jurisdiction
Before turning to the merits of the case, we must first
establish that we have jurisdiction over the appeal. Brian is
appealing from the trial court’s February 14, 2022, order of
dismissal. The trial court did not previously announce its
intended decision. The trial court clerk served a notice of entry of
the order on Brian on February 16, 2022. Pursuant to California
Rules of Court, rule 8.104(a)(1)(A), Brian had 60 days from
February 16, 2022, to file his notice of appeal.
According to the clerk’s transcript that the trial court
provided, Brian filed his notice of appeal on January 31, 2022.
When a notice of appeal is filed before a trial court announces its
intended decision, renders judgment, or enters judgment, like
Brian’s was here, the notice of appeal is not timely and the
appeal must be dismissed. (Silver v. Pacific American Fish Co.,
Inc. (2010) 190 Cal.App.4th 688, 691; First American Title Co. v.
Mirzaian (2003) 108 Cal.App.4th 956, 960; see Cal. Rules of
Court, rule 8.104(d).)
We requested supplemental briefing from the parties to
address whether we should dismiss Brian’s appeal because of the
5
premature notice of appeal. In response, Brian informed us that
after he received a notice of the trial court’s ruling, he submitted
a second notice of appeal to the trial court. Brian also filed
requests for us to judicially notice or augment the record to
include a letter to him from the trial court’s appellate clerk,
stating, “The Court received your premature (CRC 8.104(d))
Notice of Appeal on January 31, 2022. Once the judge made a
ruling on February 14, 2022, then your appeal was filed. There is
no need to keep filing and appeal for the same cause of action.”4
Together with this letter, the trial court returned Brian’s second
notice of appeal, unfiled.
Brian argues under these circumstances we should not
dismiss his appeal. We agree. He presents several different
rationales, but the most straightforward one is the correct one.
Because Brian’s initial notice of appeal was premature and
invalid, the trial court clerk was legally obligated to file his
second notice of appeal. Brian’s second notice of appeal was
mailed on February 27, 2022. The clerk received it, since the
clerk responded to it by letter and mailed it back. We therefore
deem the second notice of appeal timely filed. (Lezama-Carino v.
Miller (2007) 149 Cal.App.4th 55, 58–59 [when clerk of court
erroneously failed to file document, Court of Appeal deemed the
document filed on the day received by the clerk]; Rapp v. Golden
4 We grant Brian’s unopposed request for judicial notice of
this letter and otherwise deny his request for judicial notice.
(People v. Malone (1988) 47 Cal.3d 1, 35, fn. 12 [judicially noticing
letter from trial court clerk].) We deny his request to augment
the record.
6
Eagle Ins. Co. (1994) 24 Cal.App.4th 1167, 1172 [same]; see also
Cal. Rules of Court, rule 8.25(b)(5) [if envelope shows document
was mailed or inmate delivered document to custodial officials for
mailing within the period for filing the document, document is
deemed timely filed even if clerk receives it late].)
II. Amended Pleading
Brian contends the trial court erred in dismissing his case
for failing to file an amended petition after Therese’s demurrer.
We agree.
Code of Civil Procedure section 581, subdivision (f)(2)
provides that a court “may dismiss the complaint as to th[e]
defendant . . . [¶] . . . [¶] . . . after a demurrer to the complaint is
sustained with leave to amend, the plaintiff fails to amend it
within the time allowed by the court and either party moves for
dismissal.” (Cano v. Glover (2006) 143 Cal.App.4th 326, 329–330
[dismissal for failure to amend following order sustaining
demurrer must be with prejudice].) When the trial court
sustained Therese’s demurrer to Brian’s original pleading, it
granted him leave to amend his complaint to plead his creditor
claim with more specificity.5 Brian conceded he no longer had
standing to file a petition to remove Therese as trustee of the
5 Brian contends the trial court should have granted his
motion to strike Therese’s demurrer because it and declarations
filed in support of it contained false information. This argument
has no merit. The grounds for a motion to strike any false or
improper matter inserted in a pleading must appear on the face
of the pleading or from judicially noticeable material. (Code Civ.
Proc., §§ 436–437.) Brian’s motion to strike relied on his own
declaration, so the trial court properly denied it.
7
trust or for an accounting. Brian then filed a document titled
“Creditor’s Claim” on Judicial Council Form DE-172, together
with a notice of creditor’s claim and a declaration in support of
the claim. These documents provided additional specificity
regarding the oral agreements on which he based his claim to be
a creditor of the trust, plainly aimed at remedying the defects the
trial court found in his original claim. He filed these documents
under the same case number as his original complaint. Giving
these documents a reasonable interpretation, the creditor’s claim
was intended to be Brian’s amended pleading, given that Brian
was abandoning his claims for an accounting and removal of
Therese as trustee and proceeding solely on his creditor’s claim.
(Mathews v. Becerra (2019) 8 Cal.5th 756, 768 [when reviewing a
demurrer ruling, “ ‘ “ ‘we give the complaint a reasonable
interpretation, reading it as a whole and its parts in their
context’ ” ’ ”].)
In urging us to uphold the trial court’s order, Therese
argues that the creditor’s claim was not an amended petition to
be added as a creditor of the trust because it was titled as a
creditor’s claim and Brian cited sections 9150–9154 in his
briefing in the trial court. Brian’s use of Form DE-172 and
invocation of sections 9150 to 9154 and 9250 in his reply to
Therese’s objection were somewhat confusing, since the form and
those statutes are for use when making claims against a probate
estate. But Brian’s legal theory was in flux throughout the trial
court proceedings, between invoking sections 19000 and 19150–
19151 in his declaration in support of the creditor’s claim, as he
8
had in his original petition, and raising section 850 at the
hearing. Regardless of the validity of any of these legal theories,
which we discuss post, Brian was unambiguously attempting to
address the factual deficiencies the trial court identified in its
ruling on Therese’s demurrer to Brian’s original petition. Brian’s
creditor’s claim set forth the same factual allegations, with
additional detail, as he had alleged in the portion of his original
pleading in which he asked to be added as a creditor of the trust.
It would elevate form over substance to dismiss Brian’s claim on
the basis that it was not an amended pleading because he used
the incorrect form, and Therese cites no authority supporting
such a result. There is no indication that Therese was confused
or misled about the relationship between Brian’s original petition
and his creditor’s claim or Brian’s intent that the creditor’s claim
constitute his amended pleading.
III. Alternative rationales for the trial court’s order
As is permissible, Therese offers several alternative
rationales for affirming the trial court’s order of dismissal.
(Economic Empowerment Foundation v. Quackenbush (1997)
57 Cal.App.4th 677, 692, fn. 13 [affirming dismissal on different
rationale than trial court; “our review extends to results not
reasons”].) While one of Therese’s arguments bars recovery on
one of the alleged agreements underlying Brian’s creditor’s claim,
none of her contentions supports dismissal of Brian’s entire
claim.
9
A. Viability of recovery from the trust
Therese first argues that Brian needed to bring an action
against James’ estate, not the trust. Therese’s general contention
is that when a trustee does not pursue the optional procedure in
sections 19000–19403 (section 19000 procedure) to set an early
date to cut off creditor claims against trust assets based on the
settlor’s debts, a party with a claim against the settlor of a trust
must first file an action and obtain a judgment against the
personal representative of the settlor’s estate. Only if the estate
is insufficient to pay the claim may the claimant then seek to
satisfy the judgment from assets of the settlor’s trust. Because
Therese never pursued the section 19000 procedure and Brian
did not file a claim against James’ estate within the one-year
statute of limitations after his death, she argues Brian’s claim is
now time-barred.
Therese’s description of the procedure in the absence of the
optional cut-off procedure in sections 19000–19403 would be
correct if anyone had opened a probate estate for James after his
death. In such circumstances, a creditor of the deceased must
first file a claim in the probate proceeding in order to recover.
(§§ 9002, 9351; see Arluk Medical Center Industrial Group, Inc. v.
Dobler (2004) 116 Cal.App.4th 1324, 1334 (Arluk).)
However, a different procedure applies when the trustee
has not followed the optional section 19000 procedure and no
probate proceedings have been opened. Section 19400 states,
“Subject to Section 366.2 of the Code of Civil Procedure, if there is
no proceeding to administer the probate estate of the deceased
10
settlor, and if the trustee does not file a proposed notice to
creditors pursuant to Section 19003 and does not publish notice
to creditors pursuant to Chapter 3 (commencing with Section
19040), then a beneficiary of the trust to whom payment,
delivery, or transfer of the deceased settlor’s property is made
pursuant to the terms of the trust is personally liable, to the
extent provided in Section 19402, for the unsecured claims of the
creditors of the deceased settlor’s probate estate.” Section 19402
in turn establishes that a beneficiary is personally liable “only to
the extent the claim of the creditor cannot be satisfied out of the
trust estate of the deceased settlor” and up to the amount of the
beneficiary’s distribution. (§ 19402, subd. (b).) Brian states in
his briefing here that James’ estate was insolvent because James
transferred all of his assets into the trust, which we treat as an
offer that he can amend his pleading to allege the insolvency of
James’ estate. Leaving aside the application of the one-year
statute of limitations in section 366.2 of the Code of Civil
Procedure, which we discuss post, taken together, these statutes
allow Brian to assert a claim against Therese as trustee and seek
to recover from the assets of the trust, as section 19402,
subdivision (b) implicitly requires a creditor in these
circumstances to seek relief against the trust before pursuing any
trust beneficiary. (§ 19402, subd. (b) [beneficiary of trust may be
liable “only to the extent the claim of the creditor cannot be
satisfied out of the trust estate”].)
Therese’s argument that Brian must proceed first against
James’ estate relies on two main authorities. First is Code of
11
Civil Procedure section 377.40, which states that, subject to the
requirements for asserting creditor claims against a decedent’s
estate once probate has been opened, “a cause of action against a
decedent that survives may be asserted against the decedent’s
personal representative or, to the extent provided by statute,
against the decedent’s successor in interest.” Code of Civil
Procedure section 377.40 allows a creditor to pursue a cause of
action against the personal representative or other successor in
interest, indicating that claims against a decedent may be
asserted if a probate proceeding has not been opened. Code of
Civil Procedure section 377.11’s definition of a successor in
interest includes a successor in interest to a cause of action or
item of property. Sections 19400 and 19402 establish that the
trustee and trust beneficiaries are the decedent’s successors in
interest to trust property for the purposes of claims when there is
no personal representative. Code of Civil Procedure section
377.40 is therefore consistent with sections 19400 and 19402.
Second, Therese cites Arluk, which stated, “If there is no
proceeding to administer the decedent’s estate and the trustee
elects not to file a proposed notice to creditors pursuant to the
optional trust claims procedure [under sections 19000–19403],
then a beneficiary to whom property is distributed is personally
liable for any unsatisfied judgment obtained by a creditor against
the decedent settlor’s estate . . . . ” (Arluk, supra,
116 Cal.App.4th at p. 1333.) This statement is self-contradictory.
If there is no probate proceeding to administer the decedent’s
estate, it is impossible for the creditor to obtain a judgment
12
against the settlor’s estate. Arluk also ignores section 19402 and
its implicit requirement that a creditor must first proceed against
the assets of a trust before seeking recovery from trust
beneficiaries who received distributions. (§ 19402, subd. (b).) In
any event, in Arluk, a probate proceeding was opened for the
settlor’s estate and the creditor obtained a judgment against the
estate. (Arluk, supra, 116 Cal.App.4th at pp. 1329–1330.)
Arluk’s comment about what happens when there is no
proceeding to administer an estate is therefore dicta.
There remains the question of the appropriate vehicle for
Brian’s claim. We agree with Therese that the statutes Brian
raised in his original petition, creditor’s claim, and reply in
support of his claim were inapplicable. Sections 19000–19403
govern the optional procedure trustees can invoke to cut off
claims against trust assets, while sections 9150–9154 concern the
procedure for asserting claims against an estate. However, Brian
had two methods available him through which to assert his
claims. “If there is no probate administration and the trust
claims procedure is not initiated, the creditor may file suit
against the trustee to enforce a debt, claim, or action against the
deceased settlor. . . . [¶] Alternatively, a creditor of the deceased
settlor or a person who claims that the trustee is in possession of
real or personal property belonging to the claimant may file a
petition under [Probate Code] §850(a)(3)(A) or (C).” (Cal. Trust
and Probate Litigation (Cont.Ed.Bar 2023) § 22.51; accord, Ross
et al., Cal. Practice Guide: Probate (The Rutter Group 2023)
¶2:116.15.) At the hearing, Brian raised section 850 as authority
13
for his claim against Therese as trustee. The trial court therefore
could not have dismissed Brian’s creditor’s claim for failure to
raise any viable legal avenue of relief.
B. Statute of limitations
Therese also contends the trial court’s order of dismissal
may be affirmed because Brian’s claims based on the two alleged
oral agreements are barred by the statute of limitations. We
agree as to one of the agreements but disagree as to the other.
Therese’s argument relies on the allegations in Brian’s
claim, so we treat it as equivalent to a demurrer. “ ‘ “A demurrer
based on a statute of limitations will not lie where the action may
be, but is not necessarily, barred. [Citation.] In order for the
bar . . . to be raised by demurrer, the defect must clearly and
affirmatively appear on the face of the complaint; it is not enough
that the complaint shows that the action may be barred.” ’ ”
(Committee for Green Foothills v. Santa Clara County Bd. of
Supervisors (2010) 48 Cal.4th 32, 42.)
Code of Civil Procedure section 366.2, subdivision (a)
states, “If a person against whom an action may be brought on a
liability of the person, whether arising in contract, tort, or
otherwise, and whether accrued or not accrued, dies before the
expiration of the applicable limitations period, and the cause of
action survives, an action may be commenced within one year
after the date of death, and the limitations period that would
have been applicable does not apply.” Brian filed his original
petition within one year of James’ death, and as discussed ante,
the creditor’s claim was an amended version of the claim in the
14
original petition, so his claim is timely if the limitations period
had not expired before James died. Therese implicitly accepts
this, since she argues Brian’s claims are barred by the two-year
statute of limitations in Code of Civil Procedure section 339 for
oral contracts.
Therese is correct that a two-year period governs. (Code
Civ. Proc., § 339; Lucioni v. Bank of America, N.A. (2016)
3 Cal.App.5th 150, 164.) A cause of action for breach of a
contract generally accrues upon the alleged breach. (Piedmont
Capital Management, L.L.C. v. McElfish (2023) 94 Cal.App.5th
961, 968 (McElfish).) If a contract calls for a party’s performance
on separate occasions such that the contractual duties are
divisible, each breach triggers a separate limitations period. (Id.
at pp. 968–969.) To determine whether breach of an agreement
to repay a debt gives rise to one or multiple limitations periods, a
court must first examine whether the contract requires periodic
payments. (Id. at p. 971.) If it does, then the court must then
“determine whether or not the duty to make a monthly payment
is divisible from the duty to pay the full amount of the debt.”
(Ibid.)
Brian alleged two oral agreements with James. First is the
alleged January 15, 2012, agreement to repay the $60,000 due to
Brian and his wife from the State. Therese argues the statute of
limitations ran two years later, since Brian alleges James never
made any payments. But Brian’s pleading does not disclose
enough details about the agreement to determine how to apply
the two-year statute of limitations. James’ payments were
15
intended to be periodic. This, together with the fact that the only
alleged acceleration clause concerned James’ death, creates a
possibility that the periodic payments were intended to be
divisible from the overall obligation to repay the debt, thus
triggering separate limitations periods for each payment. (See
McElfish, supra, 94 Cal.App.5th at pp. 969–970 [payment
obligation was divisible and each payment created separate
limitations periods where duty to pay full amount was divisible
from periodic payments and clause for acceleration of debt upon
missed payment was discretionary].) Brian’s pleading does not
indicate how many payments James was obligated to make or
specify the amount of the payments from which one could
calculate the number of required payments or the date when the
last payment was due. The agreement was made over ten years
ago, but we cannot infer from that fact alone that the debt was
intended to be repaid more than two years prior to James’ death
so that all applicable limitations periods would have expired
before he died. The trial court therefore could not have dismissed
this aspect of Brian’s claim based on the statute of limitations.
The second oral agreement concerned James’ and Therese’s
purchase of a modular home from Brian for $30,000. James
allegedly agreed to pay the $30,000 in $300 installments and
made two payments before defaulting. This indicates the
contract was for 100 monthly payments, or 8 years and 4 months.
Brian variously alleges the agreement was formed on October 12,
1996, or “[i]n 1997.” Regardless of which date is correct, the two-
year statute of limitations for an action based on the breach of
16
even the last monthly payment expired long before James’ death
in late 2020. The trial court therefore could have sustained
Therese’s objection as to Brian’s claim based on this agreement.
Brian’s allegations apparently aimed at saving this claim
from the statute of limitations are insufficient. He alleges that
he and James agreed that if James did not pay the debt during
his lifetime, the debt would be due and payable in full upon his
death. This appears to be merely a restatement of the law
governing contractual obligations of decedents. (Code Civ. Proc.,
§ 377.20 [“a cause of action . . . against a person is not lost by
reason of the person’s death, but survives subject to the
applicable limitations period”].) There is no apparent reason why
such a provision would insulate Brian’s claim against the
running of the statute of limitations after James failed to make
the required payments during his lifetime. Brian further alleges
that he and James amended their oral agreement in 2008 with
James reassuring Brian that the debt would be paid. Such an
agreement to relieve Brian from the statute of limitations had to
be in writing, so the oral amendment was ineffective. (Code Civ.
Proc., §§ 360, 360.5.) Moreover, the amendment took place in
2008, so even if that oral agreement restarted the limitations
period, it still expired long before James’ death.
On appeal, Brian repeatedly argues that statute of
limitations issues were beyond the scope of the hearing after
which the trial court dismissed his claim and are therefore
outside the scope of this appeal. He asserts the hearing was on
calendar only as a status conference and he never had an
17
opportunity to present argument, written or oral, regarding
Therese’s objections to his claim.
Brian is correct that the purpose of the hearing changed,
since the trial court initially set it only as a status conference.
But Brian forfeited any right he may have had to additional
notice. He did not object at the hearing to the trial court’s
consideration of Therese’s arguments. He told the court that he
had had limited time to perform legal research because of
conditions in prison, but he never requested a continuance or told
the court that he needed more time to respond. Moreover, Brian
was not prejudiced by any lack of notice. Therese filed written
objections in advance of the hearing, in which she raised the
same arguments she raises here, sometimes verbatim. Brian had
an opportunity to respond to those arguments, since he filed a
written reply, including a response to her statute of limitations
argument. He also opposed Therese’s arguments at the hearing,
raising for the first time the section 850 theory of relief that we
found persuasive ante. Under these circumstances, the trial
court did not err in considering Therese’s alternative theories.
(Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 493 [no
prejudice from lack of notice where party prepared written
opposition and further developed argument at hearing; “the right
to notice is to be apprised of the salient issue and to have the
opportunity to prepare adequately for a hearing,” and that
purpose was met].) Therese’s alternative theories are also within
the scope of this appeal, given the rule that we must affirm the
18
trial court’s decision if it is correct on any theory that Therese
raised below.
Brian also asserts that he pleaded a quantum meruit claim
and that a quantum meruit claim permits recovery even after the
death of the decedent. Brian pled a breach of oral contract claim,
not a quantum meruit claim. (Hedging Concepts, Inc. v. First
Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410, 1419–1420
[quantum meruit claim consists of an agreement implied by law
for reasons of justice where the parties did not form an actual
agreement].) Even if he had alleged a quantum meruit claim, it
would not matter. Quantum meruit claims are governed by the
two-year statute of limitations in section 339 of the Code of Civil
Procedure, just like actions for breach of oral contracts, so the
ultimate analysis is the same. (Leighton v. Forster (2017)
8 Cal.App.5th 467, 490.)
Brian’s final response is that he should be granted leave to
amend given the liberal policy favoring amendment of pleadings
at any stage. On appeal from a dismissal following an order
sustaining a demurrer without leave to amend, we must decide
whether there is a reasonable possibility that a claim can be
amended to address a pleading defect. (LeBrun v. CBS Television
Studios, Inc. (2021) 68 Cal.App.5th 199, 212.) We would be
willing to give Brian an opportunity to amend his claim against
the trust, but Brian does not identify any specific allegation he
could make that would rescue this aspect of his creditor’s claim
from the statute of limitations. He says only that he could have
offered a supplemental amendment if the trial court had
19
dismissed it on any other grounds besides failure to file an
amended petition. This is insufficient. (Ibid. [plaintiff has the
burden of showing a reasonable possibility that defect in
complaint can be cured by amendment].)
C. Statute of frauds
Finally, Therese contends the trial court properly dismissed
Brian’s claim because it rests on oral contracts that violate the
statute of frauds. We disagree.
Therese contends the oral agreements come within the
statute of frauds because James promised that both debts would
be due in full upon his death. Civil Code section 1624,
subdivision (a)(5) provides that “[a]n agreement that by its terms
is not to be performed during the lifetime of the promisor” is
“invalid” unless it, “or some note or memorandum thereof, [is] in
writing and subscribed by the party to be charged or by the
party’s agent.” A mere possibility that a contract will not be
performed within the lifetime of the promisor is insufficient; “[i]f
the terms of a contract are such that it admits of performance
during the lifetime of the promisor, it is not within the statutory
provision here involved.” (Roy v. Salisbury (1942) 21 Cal.2d 176,
182.) Brian does not allege that James was prohibited from
paying either debt before his death or that the agreements
otherwise foreclosed the possibility that James could have fully
performed them during his lifetime. The mere possibility of
payment after James’ death is insufficient to make the oral
agreements subject to the statute of frauds.
20
In sum, the trial court erred in dismissing Brian’s creditor’s
claim in full. Although Brian’s creditor’s claim is barred by the
statute of limitations insofar as it rests on James’ and Therese’s
alleged oral agreement to purchase a modular home, the trial
court erred in dismissing Brian’s creditor’s claim to the extent it
rests on James’ and Therese’s alleged agreement to pay to Brian
and his estranged wife $60,000 received from the State.
DISPOSITION
The trial court’s order is reversed. The matter is remanded
for further proceedings not inconsistent with this opinion.
BROWN, P. J.
WE CONCUR:
GOLDMAN, J.
HIRAMOTO, J.
Spears v. Spears (A164622)

Judge of the Superior Court of California, County of
Contra Costa, assigned by the Chief Justice pursuant to article
VI, section 6 of the California Constitution.
21
Trial Court: Humboldt County Superior Court
Trial Judge: Hon. Kelly L. Neel
Counsel: Brian Spears, in pro per., for Plaintiff and
Appellant.
The Harland Law Firm, John S. Lopez for
Defendant and Respondent.