Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BP082310 Aviva K. Bobb, Judge.
Law Offices of Edgardo M. Lopez and Edgardo M. Lopez for Plaintiff and Appellant.
Hinojosa & Wallet, Andrew M. Wallet and Rebekah E. Swan for Defendants and Respondents.
EPSTEIN, P. J.
This case presents a novel issue: the standing of a spouse, who has waived all rights to the estate and property of her late husband, to bring a wrongful death cause of action and various other causes of action. We conclude that appellant Norma Edwards Borstein waived her right to bring any survivor causes of action when she reached a settlement agreement with her late husband’s conservator and heirs. But we conclude that the trial court erred in ruling that she lacked standing to pursue her own causes of action for wrongful death, breach of contract, and intentional infliction of emotional distress. We shall reverse the judgment on that basis.
FACTUAL AND PROCEDURAL SUMMARY
Norma Edwards Borstein was married to Alfred J. Borstein in October 2003. Alfred died in March 2004. In August 2003, Alfred amended his trust, naming his niece, Carol Stein, as successor trustee. On October 30, 2003, Carol Stein and Alice Ullman (Alfred’s sister) filed a petition for conservatorship over Alfred on the grounds that he was suffering from dementia. They also filed a petition for the annulment of the marriage between Alfred and appellant.
Appellant reached a settlement agreement with Alfred’s relatives on January 14, 2004. The signatories to the settlement included appellant; her attorney and Alice Ullman, Carol Stein, Selma Seps and James M. Fuller as cotrustees of the Alfred J. Borstein Trust. The settlement agreement was approved by the court in an order granting petition of settlement on March 12, 2004. (We refer to the agreement and order collectively as “the settlement agreement.”)
Ms. Ullman and Ms. Stein also were temporary conservators of the person and estate of Alfred.
The settlement agreement states that it resolves “all disputed issues related to the Conservatorship of Alfred J. Borstein, the ALFRED J. BORSTEIN TRUST . . . and all issues raised in pleadings filed in Los Angeles Superior Court Case No. BP082310 . . . .” It provided for the appointment of a professional conservator of Alfred’s person and estate. The conservator was given the power to manage Alfred’s care and treatment, determine his residence, and control his visitation.
The temporary conservators agreed to dismiss their petition for annulment of the marriage between Alfred and appellant. In consideration for this dismissal, appellant waived her rights to Alfred’s estate: “Norma waives and relinquishes all further claims to and / or against Alfred’s estate, during his life and / or after his death, including but not limited to inheritance rights by way of intestacy, will or trust existing or made in the future, devises and / or bequests, succession rights, spousal support, family allowance, and probate homestead. Further, Norma specifically waives any and all rights to spousal support, either temporary or permanent, in the event of separation or dissolution from Alfred.”
Appellant also agreed to decline all gifts from Alfred, except tangible personal property agreed to by the conservator. The settlement agreement provided that no community property rights had been created or would be created as a result of the marriage. Appellant agreed that she had not, and would not, incur debts for which Alfred’s separate property would be held responsible, and agreed to indemnify him and his estate for any debts she incurred. Appellant said she would not cause any adoptions by Alfred, and would not make disparaging remarks to him about any members of the family. She was given the right to reside in Alfred’s home without rent during his lifetime, and for a period up to 90 days after his death. Appellant’s rights to receive Social Security benefits as Alfred’s surviving spouse were not affected by the settlement agreement, and she expressly retained the rights to such benefits, if any.
The settlement agreement stated that the assets of Alfred’s $15 million estate had been disclosed to appellant, and that she had received $83,000 from Alfred as contributions to two of her business enterprises. The cotrustees waived any interest in appellant’s businesses. The settlement agreement contained an integration clause. Appellant expressly released any claims, present or future, that she might have had against the temporary conservators and cotrustees.
The order granting petition of settlement agreement was entered on March 12, 2004. Alfred died on March 25, 2004. Appellant instituted various attacks on the settlement agreement, direct and indirect. Her motion to set aside the agreement was denied, as was a motion for reconsideration of that order. Appellant’s appeal from the denial of the motion for reconsideration was dismissed for failure to file an opening brief. A petition for review to the Supreme Court was denied. The settlement agreement is now final.
Appellant also filed a complaint (LASC No. BP091456) against Alice Ullman for “Misrepresentation in Giving False Information in the Death Certificate of Alfred J. Borstein.” According to respondents, that complaint was “denied with prejudice.” Appellant’s motion for reconsideration was denied, and the order was affirmed on appeal. Remittitur issued June 1, 2006 (Borstein v. Ullman (Mar. 27, 2006, B184837 [nonpub. opn.]).
On June 15, 2006, appellant filed a petition for probate alleging under penalty of perjury that Alfred died intestate and she was his heir at law (Estate of Alfred J. Borstein (Super. Ct. Los Angeles County, 2006, SP006862).) At the request of respondents this case was transferred to Department 11 to be heard with the other matters. The petition was dismissed with prejudice on the ground that appellant had no standing in light of the settlement agreement and order approving that agreement. The order dismissing the petition was entered September 21, 2006. Appellant’s appeal from the order dismissing her petition for probate was dismissed for failure to prosecute (No. B194792). The remittitur issued on August 15, 2007.
In June 2005, acting in propria persona, appellant filed the instant complaint against Dr. Jay Stein (husband of Carol Stein), Carol Stein, Alice Ullman and Selma Seps. She alleged causes of action for conspiracy to cause wrongful death and complicity in causing wrongful death against all defendants except Jay Stein. She alleged a separate cause of action against Jay Stein for medical malpractice. The charging pleading is the third amended complaint, which added Borstein Management LLC as a defendant. Now represented by counsel, appellant alleged a cause of action for medical malpractice against Jay Stein. She also alleged causes of action for elder abuse under Welfare and Institutions Code section 15600 et. seq., wrongful death, undue influence, breach of contract, fraud, conspiracy to commit intentional tort and intentional infliction of emotional distress.
James Fuller, who is not a party to this appeal, was named as a defendant in the second amended complaint.
Defendants Carol Stein, Alice Ullman, Selma Seps and Borstein Management (respondents) moved for judgment on the pleadings on the ground that appellant had no standing to maintain her causes of action because she had waived all her rights as Alfred’s surviving spouse or successor in interest in the settlement agreement. In conjunction with the motion, respondents asked the trial court to take judicial notice of the settlement agreement and of the order granting the petition of settlement. They argued that all the causes of action except wrongful death were actually Alfred’s causes of action which had survived his death because they were based on the injuries he suffered. Under Code of Civil Procedure sections 377.10, 377.11, 377.30, and 377.31, only a personal representative of the decedent’s estate or the decedent’s successor in interest has standing to bring these causes of action. In light of the settlement agreement, they argued that appellant had waived any status that would have conferred standing.
In addition, respondents argued that the settlement agreement had deprived appellant of standing to bring the cause of action for wrongful death under Code of Civil Procedure section 377.60 because she was no longer an heir or successor in interest of Alfred. They also asserted that appellant was barred from asserting standing as Alfred’s heir because the probate court had dismissed her petition for probate in his estate for lack of standing.
In opposition, appellant took the position that she had standing to bring the cause of action for wrongful death under Code of Civil Procedure section 377.60, subdivision (a) as a surviving spouse. She also argued that her causes of action had not accrued when the settlement agreement was executed, and that the defendants could not shield themselves from liability for their subsequent wrongful acts. She asserted that the parties to the settlement agreement did not contemplate that appellant was waiving her right to sue respondents for future tortious conduct, citing Civil Code section 1668. Appellant also argued that the causes of action for conspiracy to commit an intentional tort, breach of contract, intentional infliction of emotional distress, and fraud were personal to her and not Alfred’s causes of action which had survived his death. She contended that she had standing to bring a cause of action for elder abuse, which was not barred by the settlement agreement.
In their reply, respondents characterized the third amended complaint as another attempt by appellant to have the settlement agreement set aside. They cited paragraph 1 of the third amended complaint: “Plaintiff, NORMA EDWARDS BORSTEIN, is the surviving spouse of and heir at law of ALFRED J. BORSTEIN (hereinafter, ‘ALFRED’ or ‘decedent’) who died on March 25, 2004. Plaintiff has filed a Declaration and the Certificate of Death of Alfred J. Borstein pursuant to Code of Civil Procedure section 377.32, and is entitled thereby to proceed in this action as successor in interest to the claims of decedent, ALFRED J. BORSTEIN. In addition, plaintiff has standing under Welf. and Inst. Code § 15657.3(d) to commence and maintain an action as decedent’s heir under Welfare and Institutions Code § 156000 et seq.” Respondents argued that appellant had waived her rights as heir or successor in interest in the settlement agreement.
Respondents also argued that, contrary to appellant’s assertion that some of the causes of action were based on her individual harm, the third amended complaint lacked allegations to support that assertion. Instead, citing the first paragraph of the third amended complaint (quoted above), respondents contended that appellant brought the action only as successor in interest and heir.
The probate court granted the motion for judgment on the pleadings with prejudice, finding that appellant lacked standing because she had waived her rights as successor in interest to Alfred. The probate court found that appellant “lacks standing to maintain a petition for probate, is not an heir-at-law, does not succeed to the claims of the decedent, has waived any and all testate or intestate rights of the decedent, his trusts, the trust assets, including but not limited to Borstein Management LLC, Borstein Partners Ltd., and based upon the allegations of the Third Amended Complaint, the Court finds that [appellant] lacks standing to maintain any of the said causes of action against Moving Parties and the motion shall be granted without leave to amend.” Alternatively, the probate court held that appellant is estopped from maintaining all of the causes of action based upon res judicata and collateral estoppel. Judgment in favor of respondents was entered. Appellant filed a timely appeal from the judgment.
DISCUSSION
I
“A judgment on the pleadings should be granted only where, under the facts alleged and those of which judicial notice may be granted, plaintiff has failed to state a claim for relief.” (Wedemeyer v. Safeco Ins. Co. of America (2008) 160 Cal.App.4th 1297, 1302.) “We accept as true the complaint’s factual allegations and give them a liberal construction. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516.) ‘We consider evidence outside the pleadings which the trial court considered without objection. [Citation.]’ (Pomona College v. Superior Court [(1996)] 45 Cal.App.4th [1716,] 1721.) [¶] Because a motion for judgment on the pleadings, like a demurrer, raises only questions of law, we may consider new theories on appeal to challenge or justify the trial court’s ruling. (O’Neil v. General Security Corp. (1992) 4 Cal.App.4th 587, 606; B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 959.) ‘[W]e review the trial court’s disposition of the matter, not its reasons for the disposition. [Citation.]’ (Ott v. Alfa-Laval Agri, Inc. (1995) 31 Cal.App.4th 1439, 1448.)” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1065.)
“If judgment on the pleadings is granted, plaintiff should be granted leave to amend if he can show that he is able to state a claim for relief. (Ludgate Ins. Co. [v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592,] 602.) We review the judgment on the pleadings de novo and the denial of leave to amend for abuse of discretion. (Ibid.)” (Wedemeyer v. Safeco Ins. Co. of America, supra, 160 Cal.App.4th at p. 1302.)
II
Appellant’s second cause of action is for elder abuse under Welfare and Institutions Code section 15600 et seq. Former section 15657.3, subdivision (d) of that code, in effect at the applicable times, confers standing to bring an elder abuse cause of action on “the personal representative of the decedent, or if none, to the person or persons entitled to succeed to the decedent’s estate.” Appellant concedes that the individual respondents, as trustees of the Alfred J. Borstein Trust, are personal representatives within the meaning of the statute. She claims that she is a person entitled to succeed to Alfred’s estate pursuant to Probate Code section 6401, and therefore has standing. Probate Code section 6401 establishes rights to intestate succession of a surviving spouse. But appellant expressly waived her right to intestate succession in the settlement agreement: “Norma waives and relinquishes all further claims to and / or against Alfred’s estate, during his life and / or after his death, including but not limited to inheritance rights by way of intestacy, will or trust existing or made in the future, devises and / or bequests, succession rights, spousal support, family allowance, and probate homestead. . . .” (Italics added.)
Hereafter we refer to this statute as section 15657.3(d). This subdivision was amended in 2007 to confer standing on the personal representative, or if none, an intestate heir, a successor in interest, or an interested person as defined in section 48 of the Probate Code. (Stats. 2007, ch. 48, § 1.)
Appellant relies on Estate of Lowrie (2004) 118 Cal.App.4th 220 to argue that section 15657.3(d) should be broadly construed, arguing that the Lowrie court held that the statute confers standing on “interested persons” to take up the cause of action for elder abuse. She contends that as Alfred’s spouse, she “is without a doubt, the most ‘interested person’ to redress elder abuse perpetrated against her husband.” Appellant cites Probate Code section 48 which defines “interested person.” Section 48 provides in pertinent part: “(a) Subject to subdivision (b), ‘interested person’ includes any of the following: [¶] (1) An heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding. [¶] . . . [¶] . . . [¶] (b) The meaning of ‘interested person’ as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding.” (Italics added.)
Courts have recognized that because the meaning of “interested party” may vary, and that a person may qualify as an interested party for the purposes of one probate proceeding, but not another. (Estate of Davis (1990) 219 Cal.App.3d 663, 668.) The Davis court explained: “Subdivision (a) of section 48 does not purport to provide an exclusive list of recognizable interests. Rather, it permits the court to designate as an interested person anyone having an interest in an estate which may be affected by a probate proceeding.” (Ibid.) As we have seen, appellant has no interest in Alfred’s estate under the terms of the settlement agreement.
Appellant also cites Olson v. Toy (1996) 46 Cal.App.4th 818, which was cited in Lowrie. Olson involved an effort to invalidate a trust, brought against a trustee based on allegations that the trustee exercised undue influence over the decedent. The appellate court found the plaintiff had standing because the general rule, that only a personal representative of the estate has standing, did not apply where the trustee sued was the personal representative. Olson concluded that the trustee could hardly be expected to initiate an action to declare the trust he administers invalid. (Id. at p. 824.)
Appellant argues her case is analogous to Olson and Lowrie, because respondents, particularly Carol Stein, cannot be expected to bring an elder abuse lawsuit against herself and her husband, Dr. Stein. Those cases are distinguishable because the parties seeking standing had not waived all rights and interests in the estate of the decedent as has appellant. The party seeking standing in Lowrie was a granddaughter who was the successor to the executor and trustee of her grandmother’s estate and a beneficiary. (Estate of Lowrie, supra, 118 Cal.App.4th at pp. 229-230.) In Olson, the plaintiffs were heirs who were also beneficiaries under the decedent’s will. The court found special circumstances to accord them standing because the trustee could not be expected to bring an action to declare the trust invalid. (Olson v. Toy, supra, 46 Cal.App.4th at pp. 823-824.)
We conclude that appellant has no standing under former section 15657.3(d) to bring a cause of action for elder abuse because she gave up all interests in Alfred’s estate. The settlement agreement is not subject to collateral attack since appellant’s appeal from the order denying reconsideration of the order approving the settlement agreement was dismissed for failure to file an opening brief. (Second District case No. B192129.)
III
The analysis as to appellant’s other survivor causes of action relating to respondents’ efforts to isolate Alfred and control his assets is similar. Appellant’s fourth cause of action alleges respondents conspired to commit an intentional tort by isolating Alfred in order to gain control over his assets and to prematurely end his life. The fifth cause of action for undue influence alleges that the individual respondents obtained control of Alfred’s assets by duress and undue influence. The eighth cause of action for fraud alleges that respondents made misrepresentations to the court that appellant was a danger to Alfred and that he should be removed from her care, in order to isolate Alfred and acquire his assets for their own personal gain.
Code of Civil Procedure section 377.20 provides that a cause of action for a person is not lost by reason of the person’s death, but survives subject to the applicable limitations period. Standing to bring a survivor cause of action is controlled by Code of Civil Procedure section 377.30: “A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest, subject to Chapter 1 (commencing with Section 7000) of Part 1 of Division 7 of the Probate Code, and an action may be commenced by the decedent’s personal representative, or, if none, by the decedent’s successor in interest.”
As we have discussed, appellant concedes that respondents are the personal representatives of Alfred’s estate. Probate Code section 377.11 defines “decedent’s successor in interest” for purposes of the chapter as “the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.”
Code of Civil Procedure section 377.30 was enacted as part of a “comprehensive revision of the law pertaining to the survival and continuation of actions belonging to decedents.” (Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1522.) The Parsons court turned to the Law Revision Commission Report recommending this revision in interpreting the standing provisions: “Pragmatically, ‘[t]he cause of action belongs to the decedent’s heirs or devisees on the decedent’s death or rightfully passes to a successor in interest who takes property that is the subject of the litigation, e.g., by virtue of a contract provision or account agreement or by operation of law. The proposed law authorizes the successor in interest to bring an action if there is no probate.’ (Ann. Rep. for 1992, 22 Cal. Law Revision Com. Rep. (1992) p. 900, fns. omitted.)” (Id. at p. 1524.) In Parsons, the decedent had died intestate, leaving his wife and a daughter by a former marriage. The daughter sought standing to bring an action under section 377.30 for fraud and other torts against the managers of her father’s musical career. The Court of Appeal found that she had standing as successor in interest. (Id. at p. 1523.)
Under the terms of the settlement agreement, appellant is not the successor in interest to Alfred’s estate. She is not an heir or devisee and has no financial interest in the estate. She has no standing to bring the causes of action for duress and undue influence, conspiracy to commit an intentional tort, and fraud.
We observe there is an additional problem with the cause of action for conspiracy to commit an intentional tort. “Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784.)” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510.) The fourth cause of action thus fails to state a separate cause of action.
These claims concerning the tortious conduct of respondents in gaining control of Alfred’s assets constitute survivor causes of action which appellant does not have standing to pursue. To the extent that appellant is claiming that respondents conspired to hasten Alfred’s death, that claim would be subsumed in her cause of action for wrongful death. We address that cause of action next.
IV
Appellant’s third cause of action is for wrongful death. A cause of action for wrongful death belongs “‘not to the decedent [or prospective decedent], but to the persons specified’ in Code of Civil Procedure section 377.60, i.e., qualifying heirs and dependents. (Cal. Law Revision Com. com., 14 West’s Ann. Code Civ. Proc. (2000 supp.) foll. § 377.60, p. 51.)” (Wilson v. John Crane, Inc. (2000) 81 Cal.App.4th 847, 860-861.)
Code of Civil Procedure section 377.60 (§ 377.60) defines those who have standing to bring a wrongful death action. Appellant claims standing under that statute. Respondents assert that she waived her right to bring the wrongful death cause of action by agreeing to forgo all right to Alfred’s estate in the settlement agreement. They point out that she also expressly waived her right to spousal support, her right to claim a community property interest, the right to receive gifts from Alfred, and the right to care for him because that power was given to the conservator. They assert that the wrongful death statute is “intended to compensate those listed in Code of Civil Procedure § 377.60 for ‘future loss’ they may suffer as a result of the decedent’s death. (See Harrod v. Pacific Southwest Airlines (1981) 118 Cal.App.3d 155, 158.) By the Settlement Agreement, Appellant waived all of her rights with respect to the Decedent and his assets (including support and gifts) and thus, had nothing for which to be compensated by his death. By waiving all rights to be supported by the Decedent or even live with him in the Settlement Agreement, Appellant could not have suffered any such ‘future loss’ by his death.”
Code of Civil Procedure section 377.60 provides in pertinent part: “A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent’s personal representative on their behalf: [¶] (a) The decedent’s surviving spouse, . . .”
Respondents cite a footnote in Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783 for the proposition that appellant does not have standing under section 377.60, subdivision (a) because she has no interest in Alfred’s estate. The cited footnote reads in part: “The statute limits the right of recovery to a class of persons who, because of their relation to the deceased, are presumed to be injured by his death [citation], and bars claims by persons who are not in the chain of intestate succession.” (Id. at p. 789, fn. 6.) From this, respondents would have us bar appellant’s action because she is no longer in the chain of intestate succession. Respondents’ reading of the case is too narrow. Section 377.60 plainly confers standing on a surviving spouse without conditioning it on that spouse’s right to a pecuniary interest in the decedent’s estate.
Both appellant and respondents cite Jackson v. Fitzgibbons (2005) 127 Cal.App.4th 329, a wrongful death action for the death of a child’s natural mother. The case is distinguishable. The Court of Appeal in Jackson held that a child lacked standing under section 377.60, subdivision (a) because in a dependency proceeding a juvenile court had terminated all rights between the child and her natural mother prior to the mother’s death. In light of that order, the child was no longer a child of the decedent under the statute and had no standing. (Id. at p. 335.) The court reasoned: “Our holding is consistent with the purpose of the wrongful death statute, which is to compensate for the loss of companionship and for other losses to specified persons as a result of the decedent’s death. (Phraner [v. Cote Mart, Inc. (1997)] 55 Cal.App.4th [166,] 170.) When the rights between parent and child have been terminated, such as in this case, the child no longer has any expectation or right of recovery for loss of the comfort, society, companionship or support of the parent. (Ibid.; Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 789, fn. 6 [statute limits right of recovery to class of persons presumed injured because of their relation to decedent].)” (Ibid.; italics added.)
Unlike the biological daughter in Jackson, appellant remained Alfred’s spouse until his death. The effort to annul the marriage between appellant and Alfred was abandoned with prejudice as part of the settlement agreement. Under the settlement agreement Norma was entitled to live in Alfred’s house rent free up to 90 days after his death. The settlement agreement provided: “Norma’s rights to receive Social Security benefits as Alfred’s surviving spouse shall not be affected by this Agreement and Stipulation. Norma shall retain the right to receive such benefits, if any.” These facts distinguish our case from Villacampa v. Russell (1986) 178 Cal.App.3d 906 cited by respondents. In that case, the court found that a former spouse who was still receiving spousal support from her ex-husband at the time of his death lacked standing to bring a wrongful death action.
Appellant was a surviving spouse under section 377.60, subdivision (a). While she waived her right to any financial interest in Alfred’s estate, and so could not recover damages for loss of financial support in her action for wrongful death, she was entitled to seek damages for loss of his companionship. (Corder v. Corder (2007) 41 Cal.4th 644, 661-662 [wrongful death plaintiff entitled to pecuniary value of society, comfort, and protection lost through the wrongful death of a spouse].) The trial court erred in concluding that she lacked standing to bring this cause of action.
V
Appellant brought two other causes of action which are individual to her; the sixth for breach of the settlement agreement; and the seventh for intentional infliction of emotional distress. The trial court relied on the first paragraph of the third amended complaint in concluding that appellant had not alleged she was bringing the action in her individual capacity. That paragraph alleges: “Plaintiff, NORMA EDWARDS BORSTEIN, is the surviving spouse of and heir at law of ALFRED J. BORSTEIN (hereinafter, ‘ALFRED’ or ‘decedent’) who died on March 25, 2004. Plaintiff has filed a Declaration and the Certificate of Death of Alfred J. Borstein pursuant to Code of Civil Procedure section 377.32, and is entitled thereby to proceed in this action as successor in interest to the claims of decedent, ALFRED J. BORSTEIN. In addition, plaintiff has standing under Welf. and Inst. Code § 15657.3(d) to commence and maintain an action as decedent’s heir under Welfare and Institutions Code § 156000 et seq.”
Counsel for appellant requested leave to amend the first paragraph to clarify that she had individual causes of action as well. But the trial court ruled that there was no opportunity to amend after a judgment on the pleadings had been granted. This was incorrect because a plaintiff should be granted leave to amend if he or she can show that he is able to state a claim for relief. (Wedemeyer v. Safeco Ins. Co. of America, supra, 160 Cal.App.4th at p. 1302.)
The sixth cause of action for breach of contract against the individual respondents and Fuller alleged that respondents had breached the settlement agreement they made with appellant. The seventh cause of action for intentional infliction of emotional distress alleges: “Defendants’ conduct was committed with intent to inflict injury or in reckless disregard for the potential harm it would cause to ALFRED and Plaintiff.”
Based on the first paragraph of the complaint, respondents characterized these causes of action as survivor causes of action brought on behalf of Alfred’s estate. They argue appellant had no standing to bring these causes of action because she waived her rights to Alfred’s estate in the settlement agreement and therefore does not qualify under Code of Civil Procedure section 377.20 as either a personal representative or a successor in interest. Treating these causes of action as survivor causes of action, respondents contend that appellant is mounting a collateral attack on the settlement agreement, which is final.
Regardless of how appellant may have characterized either or both of these causes of action, they are, in fact, brought by her as an individual, not as survivor causes of action. The cause of action for breach of contract alleges that respondents failed to fulfill the conditions of the settlement agreement they made with her. Although appellant refers to emotional distress suffered by both herself and Alfred in the seventh cause of action for intentional infliction of emotional distress, she had standing in her own right to pursue damages for the emotional distress she suffered. Inartful pleading does not deprive her of standing. (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 174-175 [general allegations of breach of contract do not supersede specific factual allegations relating to performance of contract]; Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1389-1390 [general allegation of performance of contract condition controlled by specific allegations which do not support that conclusion].) Appellant’s complaint adequately alleged her standing to bring these individual claims.
Respondents’ motion for judgment on the pleadings challenged only appellant’s standing and did not assert other deficiencies in the allegations of the third amended complaint. The trial court granted the motion only on the standing argument. In doing so, it erred.
We note that the breach of contract cause of action contains only a conclusory allegation that “The defendants failed to fulfill the condition of the agreement.” The specifics of the breach, including the condition at issue, are not alleged. “It is well settled a pleader must state with certainty the facts constituting a breach of contract. [Citations.]” (Melican v. Regents of University of California, supra, 151 Cal.App.4th at p. 174.)
VI
Respondents also argue that the trial court order denying appellant’s petition for appointment as administrator in the probate of Alfred’s estate for lack of standing conclusively decided the standing issue against appellant under the doctrines of res judicata or collateral estoppel. Probate Code section 8000 provides: “(a) At any time after a decedent’s death, any interested person may commence proceedings for administration of the estate of the decedent by a petition to the court for an order determining the date and place of the decedent’s death and for either or both of the following: [¶] (1) Appointment of a personal representative. [¶] 2. Probate of the decedent’s will.” As we discussed above, the term “interested person” is defined in Probate Code section 48. Probate Code section 48, subdivision (b) expressly recognizes that “[t]he meaning of ‘interested person’ as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding.”
Appellant responds that these doctrines do not apply since the third amended complaint is the first action brought by appellant on these causes of action. Respondents are relying on an order of the probate court regarding standing to bring a petition for probate, a different matter. Appellant also argues the issues were not identical, so res judicata does not apply, citing Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1015.)
“‘“The doctrine of res judicata precludes parties or their privies from re litigating a cause of action that has been finally determined by a court of competent jurisdiction. Any issue necessarily decided in such litigation is conclusively determined as to the parties or their privies if it is involved in a subsequent lawsuit on a different cause of action.” [Citation.]’ (Thibodeau v. Crum (1992) 4 Cal.App.4th 749, 754.) ‘“[T]he rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable.” [Citation.]’ (Id. at p. 755, original italics.) [¶] ‘In determining the validity of a plea of res judicata three questions are pertinent: [¶] 1. Were the issues decided in the prior adjudication identical with those presented in the later action? [¶] 2. Was there a final judgment on the merits? [¶] 3. Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? [Citations.]’ (Stafford v. Yerge (1954) 129 Cal.App.2d 165, 168.)” (Lyons v. Security Pacific Nat. Bank, supra, 40 Cal.App.4th at p. 1015.)
There is no identity of the issues. Appellant’s standing to bring a petition for probate of Alfred’s estate is distinct from her standing to bring the various causes of action in her third amended complaint. The doctrine of res judicata has no application.
Similarly, the related doctrine of collateral estoppel does not apply to the order denying appellant standing to petition for appointment as administrator in the probate of Alfred’s estate. “‘In general, collateral estoppel precludes a party from relitigating issues litigated and decided in a prior proceeding. [Citations.] “Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.” [Citation.]’ (Gikas v. Zolin (1993) 6 Cal.4th 841, 848-849.) Importantly, ‘“[t]he party asserting collateral estoppel bears the burden of establishing these requirements.” [Citation.]’ (Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 943.)” (Tennison v. California Victim Comp. & Government Claims Bd. (2007) 152 Cal.App.4th 1164, 1174.) Here, the first, second, and third requirements are not satisfied. Appellant’s standing to bring these civil causes of action was not litigated in the order on her probate petition.
In sum, while the trial court correctly ruled that appellant lacked standing as to some of her causes of action (for elder abuse, conspiracy, undue influence and duress, and fraud), it erred in reaching that decision as to the other causes of action (for wrongful death, breach of contract, and intentional infliction of emotional distress). Since the final ruling was a judgment on the pleadings, based on lack of standing as to all causes of action—reversal is required.
DISPOSITION
The judgment is reversed. Appellant is to have her costs on appeal.
We concur: WILLHITE, J., MANELLA, J.