Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 288336
Richman, J.
This appeal is the collateral off-shoot of an increasingly bitter intra-family dispute over a deceased grandmother’s estate. On one side are sisters Tina and Toshia Webster, two granddaughters of the decedent. On the other side are Rhonda Colvin, another granddaughter, and her nephew, Vincent Webster, Jr. Colvin tried to recover damages from Dionne Choyce, an attorney who prepared one of the wills whose contest for probate commenced this dispute. Colvin’s attempt ended with a judgment of dismissal entered after the trial court granted Choyce’s motion for judgment on the pleadings. Vincent Webster’s attempt to enter the litigation was defeated when the trial court refused leave to file an amended complaint adding him as a party.
Colvin and Vincent Webster appeal from these rulings. As to the dismissal, we conclude that the sole cause of action Colvin had alleged against Choyce suffered from several crippling defects, and thus judgment on the pleadings was correctly granted, with leave to amend. Because Colvin made no timely attempt to amend, we further conclude that the trial court did not abuse its discretion in granting a subsequent motion to dismiss. As for the denial of leave to file the amended pleading, we conclude that each of the three reasons given by the trial court is sound. In light of these conclusions, we affirm the two orders.
BACKGROUND
This is the second appeal generated from this dispute. In the interests of simplicity, and because the salient details are well known to the parties, we reiterate the narrative from the first appeal:
“Renna Holmes died on Christmas 2005, less than a month after her 84th birthday. She owned and operated the Holland Board & Care Home (HBCH), described in one of the pleadings as ‘a licensed elder care facility’ located at 3537 Jennings Street in San Francisco. The same document describes Ms. Holmes’s granddaughter Toshia Webster as the ‘administrator’ of the facility.
“On February 1, 2006, granddaughter Rhonda Colvin filed a petition asking that a will made by Ms. Holmes in 1985 be admitted to probate, and that in accordance with the terms of that will she be appointed executor of the estate. On March 3, 2008, granddaughter Toshia Webster filed a petition for admission of a will made by Ms. Holmes in 2004 [to] be admitted to probate, and that in accordance with the terms of that will she be appointed executor of the estate.
“The only real asset of the estate was the Jennings Street property, which was valued in both petitions at approximately $430,000. According to the 1985 will, it would pass to all granddaughters ‘in equal shares, share and share alike.’ In the 2004 will, the property was left ‘to my granddaughter, Toshia Webster.’
“On July 21, 2006, after Toshia Webster filed a will contest (see Prob. Code, §§ 8004, 8250), Colvin filed a cross-complaint against Toshia Webster and others, with the focus on Webster. Colvin alleged that ‘In her role as granddaughter and administrator of the board and care [facility], [Webster] became the exclusive caregiver for Decedent who was unable to operate the board and care, and in this manner she controlled access to Decedent and the board and care checking account at the time the [2004] will was executed. Throughout... [Webster’s] relationship as administrator, she transferred Decedent’s funds to herself and her sister Tina Webster.’
“The other named cross-defendants were: (1) Simon Smith, the husband of Toshia Webster; (2) Dionne Choyce, the attorney who drew up the 2004 will; (3) Calvin Johnson, a witness to the 2004 will; and (4) Cedric Akbar, the other witness to the 2004 will. Johnson and Akbar are described in the cross-complaint as ‘close associates of cross-defendants [Webster] and Smith.’...
“Although Tina Webster was not named as a cross-defendant, she was apparently served as a Doe defendant.
“Colvin further alleged that, following her husband’s death in 2002, Ms. Holmes suffered from congestive heart failure and a loss of her mental faculties that eventually became ‘dementia.’ Taking advantage of this situation, and knowing that the continued operation of HBCH was her grandmother’s dearest wish, Webster threatened to quit as HBCH administrator unless Ms. Holmes made a will leaving the Jennings Street property to her. The threat had its intended effect and overcame Ms. Holmes’s resistance, and Webster selected the attorney who drafted the 2004 will. Finally Colvin alleged that Webster’s embezzling from Ms. Holmes’s checking account continued until she died.
“Based on these allegations, Colvin stated causes of action for ‘conspiracy to commit financial elder abuse,’ a constructive trust, and an accounting. Colvin also prayed for declaratory relief that, in light of her financial elder abuse, Webster be deemed under Probate Code section 259 to have predeceased her grandmother.
“In October 2006, Colvin filed a new pleading titled ‘Complaint: 1. Financial Elder Abuse; 2. Fraud & Deceit Based on Concealment; 3. Establishment and Imposition of Constructive Trust; 4. Determination that Defendant Toshia Webster and Tina Webster Predeceased Decedent; 5. Accounting.’ The factual allegations were virtually identical to those in Colvin’s earlier pleading. The only salient differences were that: (1) both Toshia Webster and Tina Webster (hereafter collectively “the Websters”) were alleged to have participated in the “conspiracy to commit financial elder abuse,’ from both of whom an accounting was demanded and a constructive trust requested; (2) both Websters were now alleged to be disqualified from inheriting because of their financial elder abuse; and (3) all defendants were now alleged to have been involved in a ‘conspiracy to commit fraud and deceit based on concealment.’
“As to the last point, the fraud allegedly consisted of defendants concealing from Ms. Holmes that the 2004 will would not fulfill her testamentary wishes in several particulars: ‘Defendants knew on August 4, 2004, Decedent was not of sound mind and lacked testamentary or donative capacity, and because of Decedent’s mental state, Defendants agreed that they would unduly influence Decedent to execute the August 4, 2004 will, disposing of her entire estate contrary to her wishes as they all knew.’ ” (Webster v. Colvin (Dec. 12, 2008, A120336) [nonpub. opn].)
In the prior appeal, we affirmed the order denying Colvin’s special motion under the anti-SLAPP statute (Code Civ. Proc., § 425.16) to strike the Websters’ cross-complaint. Colvin did not file a petition for rehearing, and the opinion is now final as to this court.
Choyce was named as a defendant in Colvin’s complaint. According to Colvin, Choyce’s role in the alleged fraud was that in June 2004, he was approached by Simon Smith, the husband of Toshia Webster, (see fn. 2, ante), to prepare a will for Ms. Holmes. Although Choyce was “wholly lacking in experience as an estate planner,” Smith and Webster hoped that his membership in the same church that Ms. Holmes attended would “lull [her] into a false sense of security and cause her to overlook her distaste for Defendants Toshia and Smith’s drug-centered life styles.” They also “made sure” that Ms. Holmes was kept away from the attorney who prepared the 1985 will. Smith and Toshia Webster drove Ms. Holmes to meet Choyce in the church to discuss a new will.
Colvin further alleged that Ms. Holmes had been upset with the way in which the Websters and Colvin “had fought over her daughter’s (and their mother’s) estate.” As a result of this dispute, Ms. Holmes now wanted to leave the HBCH and the Jennings Street property to her five great grandchildren. At the church meeting, Ms. Holmes told Choyce that she wanted to avoid a recurrence of the fight over her daughter’s estate, “did not want the house sold[,] and that she wanted the board and care home to continue in operation.” Thereafter, Choyce had several telephone conversations with Ms. Holmes before finalizing the terms of her new will.
Colvin then alleged the particulars of Choyce’s actionable conduct: “Choyce knew or as an attorney should have known the will contained no provision preventing the sale of the house or assuring its use as a board and care home. Any reasonably competent attorney with knowledge of the facts would have realized that the will Choyce prepared guaranteed a will contest, exactly what Decedent told Choyce... she wanted to avoid.... Choyce also should have known that the proper vehicle for Decedent’s estate plan was at a minimum a testamentary trust,” which “would have been the only way to accomplish Decedent’s undisputed intention.... As the drafter, he should have considered specific clauses concerning the continued operation” of the HBCH.”
Finally, Colvin alleged that “It was also below the standard to have Decedent execute the will in the presence of the principal beneficiary Toshia where Choyce knew that Defendant Toshia and (through marriage) her husband Smith were the sole beneficiaries of Decedent’s estate to the exclusion of all Decedent’s other grandchildren and great and great great grandchildren. Choyce thus tortiously accommodated Defendants Toshia and Smith in their objective of getting Decedent to execute a will distributing the entire estate to Toshia in direct contravention of Decedent’s undiputed dispositive intentions....” “Although Choyce admits to having received a copy of the will, he was asked to produce his copy and failed to do so. It was thus below the standard [of care] for Choyce not to keep a fully conformed copy of every will that he prepares.” “[B]y the way Choyce purportedly drafted the will, it was foreseeable and actually happened when shortly after [Decedent’s] death Toshia closed the business on the false pretext that the state licensing agency would not issue a license to her.”
The following events occurred in 2007:
In June, the San Francisco Public Administrator was appointed to administer Ms. Holmes’s estate.
In December, Choyce answered Colvin’s complaint and moved for judgment on the pleadings The basis for the motion was explained as follows: “Plaintiff’s only cause of action against Defendant Choyce for fraud does not state facts sufficient to constitute a cause of action against Defendant Choyce. Plaintiff’s allegations against Mr. Choyce sound in malpractice, not fraud. There is no privity between Plaintiff and Mr. Choyce.... Thus Plaintiff has not alleged a cause of action against Defendant Choyce and the complaint against Defendant Choyce should be dismissed.”
“Although cleverly disguised in flowery verbose paragraphs, if we look to the gravamen of the complaint, the allegations against Defendant Choyce sound in malpractice, not fraud. According to California case law, an attorney does not owe a duty to potential heirs under the circumstances in this case. Plaintiff is a ‘potential heir’ since she is not a named beneficiary in the will that Defendant Choyce drafted. Plaintiff attempts to ‘hide the ball’ by not attaching a copy of the will and ‘tap dancing’ around the fact that her chief complaint with the will that Defendant Choyce drafted is that she was left out of it.”
The following occurred in 2008:
Correctly treating the Websters’ motion for judgment on the pleadings as the equivalent of a demurrer, on February 21 the trial court granted the motion but gave Colvin ten days to amend her complaint. In its written order, the court stated: “The allegations of the complaint... state a malpractice claim, not a fraud claim. The allegations of fraud are contradicted by allegations that the will was read to the decedent. The complaint fails to allege a duty of care because Colvin was not an intended beneficiary and no facts are alleged that establish a fiduciary relationship between Colvin and Choyce.”
On March 3, Colvin filed her first amended complaint. This time she was joined as a plaintiff by her nephew, Vincent Webster, Jr., one of Ms. Holmes’s great grandchildren. Choyce was now alleged to be a part of a “conspiracy... to take Decedent’s entire estate by a formal last will containing a testamentary disposition that did not accurately reflect Decedent’s intended disposition of her property.” Choyce “agreed” with the Websters and Smith “to thwart Decedent’s testamentary intent.” It was further alleged that what Choyce read aloud to Ms. Holmes was not the actual terms of 2004 will. “Choyce specifically intended to benefit Toshia and her husband Smith, his true clients, and not to carry out Decedent’s expressed intentions.” “[A]ccording to the witnesses who were present for the reading, what Choyce purportedly read to Decedent was that all of Decedent’s property went to Toshia in trust for the benefit of Decedent’s great grandchildren, and not what the 2004 will actually said, that all of Decedent’s property went to Toshia outright.”
The pleading opens with the recitals “COMES NOW Plaintiff RHONDA R. COLVIN (Colvin)... and... [¶]... Plaintiff VINCENT WEBSTER, JR. (Vincent),” and then states, “Plaintiff Vincent is the daughter of Colvin.” However, in the final version of the second amended complaint, Vincent Webster is alleged to be the son of a brother of Colvin and the Websters, and a great grandson of Ms. Holmes. As the latter seems more logical, we treat Vincent Webster as Colvin’s nephew. (See fn. 11, post.)
“In other words, what Choyce represented to Decedent was in the will was false, Choyce knew it was false and by the false representation intended to deceive Decedent and induce her to sign the will which he knew did not reflect Decedent’s true intentions.” “As a direct and proximate and foreseeable result, Plaintiff Vincent Webster, Jr., was disinherited despite the fact that the will read to Decedent purportedly conveyed all of Decedent’s property in trust to Toshia for distribution to Decedent’s great grandchildren including Plaintiff Vincent Webster, Jr.” Choyce also furthered Toshia’s scheme by assisting her to secrete the original of the 2004 will.
On the basis of these allegations, Colvin and Webster added Choyce as a defendant on the cause of action for “conspiracy to commit financial elder abuse.” Vincent Webster was added as a plaintiff on the cause of action against Toshia Webster for an accounting. Finally, Vincent Webster was the sole plaintiff in a new cause of action against Choyce for negligence. The allegations supporting this new cause of action were that Choyce owed Vincent “a duty to act competently in drafting the [2004] will” because “[a]n attorney who assumes responsibility to prepare a will, as Choyce did for Decedent, incurs a duty not only to Decedent, his testator client, but also to Decedent’s intended beneficiaries, and lack of privity does not preclude the testamentary beneficiary form maintaining an action against the attorney.... In knowingly drafting a will that substantially deviated from Decedent’s intent Choyce breached a duty owed to Vincent an intended beneficiary.”
On March 20, the Websters moved to strike Colvin’s and Vincent’s first amended complaint. The gist of the motion was that Colvin had “improperly added Vincent as a party to the second cause of action,” “improperly substituted Vincent in place of [Colvin] as the sole plaintiff in the third fourth and fifth causes of action,” and “improperly added a cause of action (the sixth cause of action—negligence) and made Vincent the sole plaintiff,” all contrary to Code of Civil Procedure section 436 and the court’s February 21 order granting the Websters’ motion for judgment on the pleadings. Choyce made the same, as well as other, objections, with a general demurrer to the first amended complaint.
Five days later, on March 25, Colvin moved under Code of Civil Procedure section 473 for leave to file a second amended complaint. Colvin argued that her motion mooted the Websters’ motion to strike the first amended complaint. Choyce opposed the motion on the ground that giving Colvin approval to file a new pleading “will only delay matters, waste judicial resources, and ‘run up’ attorney’s fees and costs.” The Websters also filed opposition to Colvin’s request, arguing that Colvin and Vincent “have... presented no argument whatsoever... as to why... these additions, deletions and substitutions are ‘in the furtherance of justice’ ” and could not have been made earlier.
On April 11, the court granted the Websters’ motion to strike, but Colvin was granted “ten days leave to amend to... comply with the court’s prior order”; Choyce’s demurrer was ordered off calendar as moot.
On April 17, the court denied Colvin’s motion for leave to file a second amended complaint for procedural reasons. As stated in its ruling, the court’s denial was “without prejudice to seek to amend in conformance with California Rules of Court 3.1324 and the filing of a declaration that complies with C.C.P. section 473 and explains why the amendment is necessary, when the facts giving rise to the claim were discovered and explains the reason for any delay in seeking to amend. The filing of the second amended complaint does not comply with the court’s orders of April 11, 2008 and February 20, 2008.”
Colvin refiled her motion to amend on April 21. In his declaration accompanying the motion, Colvin’s attorney, Richard Canatella, candidly admitted that “The effect of the proposed second amended complaint is to plead around the deficiencies in the original complaint as pointed out by the Order granting Mr. Choyce’s motion for judgment on the pleadings entered March 17, 2008.” The attorney explained:
“The allegations proposed to be added in the second amended complaint state that ‘Choyce owed Plaintiff Vincent [Webster Jr.] a duty to act competently in drafting the second will and assure that the second will reflected the testator’s true intentions regarding the distribution of her property to her great grandchildren[.] Choyce breached the duty by acting incompetently in drafting the August 2004 will, and by negligently failing to draft a will that conformed with the testator’s intent to leave her property to her great grandchildren including Plaintiff.’...
“[¶]... [¶] The facts giving rise to the amended allegations were discovered by Declarant around February 18, 2008, in a telephone conversation with Calvin Johnson, where Declarant learned for the first time that Johnson, a subscribing witness, would testify that at the execution of the will [on] August 4, 2004, Decedent said in words or substance that ‘I do not want a fight over this will’—‘It is my intention that all my estate be distributed to Reverend Riddick to be held in trust for all my great grandchildren.’ However, instead of a testamentary transfer of Decedent’s estate in trust to Reverend Riddick for the benefit of the true objects of Decedent’s bounty, her great grandchildren including Vincent Webster, Jr., Choyce drafted the 2004 will to transfer all of Decedent’s property to Toshia outright in disregard of Decedent’s expressed intentions. Declarant is concerned that Tina, Toshia or Choyce may attempt to obstruct justice by witness tampering as to Calvin Johnson because of their close connections to ‘positive direction’ where Johnson is the program director.”
“Positive Direction” was described in an earlier pleading as “a nonprofit community care agency operated by the San Francisco General Hospital to dispense methadone to addicted persons... in San Francisco.”
The Websters and Choyce again opposed granting Colvin permission to commence a new round of pleadings. Among the points they made were that: “Colvin (and Vincent) Have Still Not Complied with the Court’s Three (3) Prior Orders”; the attorney’s declaration was procedurally inadequate and did not explain that Colvin’s attorney “knew of Calvin Johnson long ago, knew his whereabouts long ago and logically could have discerned the ‘allegations’... long ago,” thus making the proposed amendment “a sham and inconsistent with the prior pleadings”; Vincent lacked standing because he did not qualify as “an Intended or Contingent Beneficiary of Either the 1985 will or the 2004 will”; and Colvin’s attorney was engaging in “gamesmanship” by deleting “a key allegation” that was in the original complaint and that would be fatal to the proposed amended complaint.
On May 13, the trial court heard argument on the motion and denied it without prejudice. The pertinent portion of its order was as follows: “The Court finds that the proposed amendment is not a sham and that Vincent Webster may have a claim against defendants. The Canatella Declaration reflects that the facts giving rise to the amendment occurred on February 8, 2008. However, the Declaration does not explain why Webster was not named in the original complaint and for that reason only the amendment is denied without prejudice to renew the request.” The formal order of denial was filed on June 11.
Also on June 11, the court heard argument on the renewed motion by Colvin and Webster for leave to file a second amended complaint. The written arguments in favor of the motion, and the points made in opposition, were largely the same as made in connection with the first motion. Richard Canatella, the attorney for Colvin and Vincent Webster, filed a declaration in which he stated that Vincent had not been made a party earlier in the proceedings because he “was neither a necessary nor indispensable party to the original complaint” at the time that “Plaintiff Rhonda Colvin, not Vincent Webster, Jr., had standing to obtain complete relief under the elder abuse complaint.” As for the timeliness of the proposed amendment, counsel further stated in his declaration that he first obtained information about the alleged switch of wills from Calvin Johnson “[a]round February 18, 2008.”
However, this time the opposition included a declaration by Calvin Johnson who, according to Mr. Canatella’s declaration, provided the supposed basis for the amended complaint. In his declaration, Johnson destroyed that basis: “At some time in February of 2008 I had a conversation with Richard Canatella. In that conversation I told Mr. Canatella that Renna Holmes stated that ‘she wanted her estate to go to Toshia Webster. Toshia was running the business and she wanted to keep it going. I never heard Ms. Holmes say that she wanted everything or anything to go to the great grandchildren nor would I ever say that.’ If Mr. Canatella is saying that I said that Ms. Holmes said that she wanted everything to be held in trust by Reverend Riddick for the benefit of the great grandchildren then he is lying. At the time of the signing of the will, I did not even know that Ms. Holmes went to Reverend Riddick’s church.”
The court ruled in pertinent part as follows: “Plaintiff’s [sic] motion for leave to file verified amended complaint is denied without leave to amend as to Vincent Webster, Jr.... The facts alleged do not establish a basis for finding that Vincent Webster, Jr. is an interested party within the meaning of Probate Code Section[s] 1043 (A) (B) and 8270 (A). Moreover, any claim by Vincent Webster, Jr. for elder abuse appears to be barred by the two year statute of limitations, C.C.P. Section 335.1. Finally, the proposed amendment changes the allegations as to what Choyce allegedly read to decedent. When this fact is coupled with the declaration of Calvin Johnson..., the Court finds the proposed amendment to be a sham pleading.”
The court’s formal ruling was filed on July 23. Twelve days earlier, on July 11, Choyce moved for “entry of judgment pursuant to C.C.P. § 438 (i)(1)(B)” on the ground that Colvin had not complied with the order of February 21 giving her ten days to file an amended complaint. On August 8, the trial court filed its order dismissing Choyce “from the... action with prejudice.”
Colvin and Vincent Webster filed a timely notice of appeal from (1) the order of dismissal entered after the trial court granted Choyce’s motion for judgment on the pleadings, and (2) from the July 23 order denying leave to file a second amended complaint.
The dismissal is of course an appealable order. (Code Civ. Proc., § 581d; Meyers v. Home Sav. & Loan Assn. (1974) 38 Cal.App.3d 544, 546 [order of dismissal following failure to amend after demurrer sustained with leave to amend “constitutes a judgment and is appealable”].) Because it is the final judgment as to Colvin, her appeal from it allows her to obtain review of all intermediate orders—including the denial of leave to amend her complaint—made prior to the dismissal. (Jennings v. Marralle (1994) 8 Cal.4th 121, 128.) As for Vincent Webster, who never officially became a party, the only appealable order is the July 23 order denying him the opportunity of achieving that status by not allowing the filing of the amended complaints. (Diliberti v. Stage Call Corp. (1992) 4 Cal.App.4th 1468, 1470, fn. 1; Dominguez v. City of Alhambra (1981) 118 Cal.App.3d 237, 241.)
DISCUSSION
The Trial Court Did Not Err In Granting Choyce’s Motion For Judgment On The Pleadings
Colvin attacks the dismissal entered after the trial court granted Choyce’s motion for judgment on the pleadings. To prevail, Colvin must show that, accepting the truth of its factual allegations, the pleading stated any cause of action. (E.g., McCormick v. Travelers Inc. Co. (2001) 86 Cal.App.4th 404, 408.) Colvin has not made that showing.
Preliminarily, we note that Colvin bases much of the arguments in her opening brief on the allegations, and thus the supposed underlying facts, of the amended complaints the trial court did not allow to be filed. But the subsequent pleadings do not figure in our inquiry.
When the trial court granted Choyce’s motion for judgment on the pleadings, it did so with respect to the complaint Colvin filed in October 2006. The court granted Colvin ten days to amend her complaint, but Colvin did not do so. Granted, by the time it granted Choyce’s motion to dismiss, the court was obviously aware of the subsequent amended complaints, but the dismissal was virtually ministerial. (See Code Civ. Proc., § 581, subd. (f)(2).) Therefore, our inquiry is restricted solely to Colvin’s October 2006 complaint, the only pleading before the court when it ruled on Choyce’s motion for judgment on the pleadings. We ignore the amended pleadings that Colvin (and Vincent Webster) subsequently sought to file. (See Hensler v. City of Glendale (1994) 8 Cal.4th 1, 8-9, fn. 3; Contreras v. Blue Cross of California (1988) 199 Cal.App.3d 945, 951.) This is nothing more than application of the elemental principle of appellate practice that a reviewing court limits itself to the matters before the trial court when it made the contested ruling. (E.g., Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325; Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813; Doers v. Golden Gate Bridge Etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1.)
So much so that Colvin did not oppose it.
When the trial court granted Choyce’s motion for judgment on the pleadings on February 21, 2008, it did so with respect to Colvin’s first amended complaint. The court granted Colvin ten days leave to amend, but, as shown by the subsequent dismissal, Colvin did not file an amended pleading within this period. Accordingly, we look only to the original complaint, with the attitude that “ ‘strict construction of the complaint is required and it must be presumed that the [pleader] has stated as strong a case as he [or she] can.” (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1091; see Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231, 252.)
The only cause of action stated against Choyce in the original complaint was “for conspiracy to commit fraud and deceit based on concealment.” The rules governing such a cause of action are stern and not very flexible:
“[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613.)
Colvin’s cause of action has several defects. First, on the element of duty, Choyce correctly pointed out in her motion for judgment on the pleadings that Colvin was no more than a potential heir, and under California law, an attorney drafting a will does not owe any duties to potential heirs or beneficiaries. Whatever professional duties were owed by Choyce, they were owed to his client, Ms. Holmes. (Boranian v. Clark (2004) 123 Cal.App.4th 1012, 1018-1021; Radovich v. Locke-Paddon (1995) 35 Cal.App.4th 946, 954, 965-966.) Choyce had no duty to challenge his client’s expressed desires with the aim of ascertaining Ms. Holmes’s “true” intentions. (Boranian v. Clark, supra, at p. 1019, citing Hiemstra v. Huston (1970) 12 Cal.App.3d 1043, 1046.) This court has accepted these principles. (Moore v. Anderson, Zeigler, Disharoon, Gallagher & Gray, (2003) 109 Cal.App.4th 1287, 1298-1300.)
It is somewhat misleading to refer to Colvin as a “potential heir” in the context of Choyce’s professional actions. If the will Choyce prepared for Ms. Holmes’s signature accurately reflected her testamentary intentions, Colvin is not a potential heir, indeed no heir at all. Colvin is a potential heir only under the 1985 will that was superseded by the instrument Choyce prepared. The concept of a “potential” heir appears synonymous with an intended heir. (See Heyer v. Flaig (1969) 70 Cal.2d 223, 228-229, disapproved on another point in Laird v. Blacker (1992) 2 Cal.4th 606, 617.)
That is not all. In her original complaint Colvin alleged that “Choyce... read the will to decedent,” which Ms. Holmes then executed. This leads inexorably to the conclusion that the will presumably reflected Ms. Holmes’s wishes or she would not have signed. From this conclusion it follows that there was no concealment, and, no damages. Because Choyce had no duty to Colvin, and committed no fraud, there can be no actionable civil conspiracy. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511, 514, Ferris v. Gatke Corp. (2003) 107 Cal.App.4th 1211, 1225.) Thus, there was no error in granting Choyce’s motion for judgment on the pleadings.
As previously mentioned, the trial court granted Colvin ten days within which she could file an amended pleading. She did not do so. The ten days had long since expired when the trial court granted Choyce’s motion to enter a dismissal. Given the circumstances, ordering entry of the dismissal cannot be called an abuse of discretion. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.)
The Trial Did Not Abuse Its Discretion By Denying Leave To File The Proposed Second Amended Complaint
Colvin and Webster next contend that the trial court erred in denying their attempts to file a second amended complaint. Here, the standard of review allows reversal only if we conclude that the trial court abused its discretion. (E.g., Reynolds v. Bement, supra, 36 Cal.4th 1075, 1091.) We find no such abuse.
As previously mentioned, the trial court’s final refusal to grant Colvin and Vincent Webster leave to file a second amended complaint was based on three reasons, one of which was that the proposed pleading was time-barred by Code of Civil Procedure section 335.1. Yet this ground goes absolutely unmentioned in their appellants’ opening brief. That omission can be taken as an implicit concession that this basis for the order was sound, which would by itself justify upholding the ruling. (See Filipino Accountants’ Assn. v. State Bd. Of Accountancy (1984) 155 Cal.App.3d 1023, 1029.)
Which provides “Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” (Code Civ. Proc. § 355.1.)
Instead, Colvin and Vincent Webster launch a totally baseless attack on the manner in which the trial court made its ruling. They assert that the trial court acted “without notice nor an opportunity for [them] to be heard.” This is infamously inaccurate. The trial court was acting upon a noticed motion by Colvin and Vincent Webster for “Renewal of Motion for [an] Order granting leave to file Verified Second Amended Complaint,” to which the Websters filed written opposition, and which was the subject of a reported hearing at which Colvin and Webster appeared and argued for their motion. It is therefore utterly untrue for Colvin and Vincent Webster to try to paint the trial court as going off on a sua sponte frolic.
What we held about the absence of a duty owed by Choyce to Colvin is equally applicable vis-à-vis Choyce to Vincent Webster. His counsel admitted this in the declaration he submitted on the renewed motion to amend: “Vincent Webster, Jr. would not take under either the 1985 or 2004 wills.” Thus, he does not qualify as an interested person, as is evidenced by the fact that he never joined as a party to either of the will contests. This was another sound basis for the trial court denying the renewed motion to file a second amended complaint.
The Websters state in their brief, as they did in opposing the final motion to file a second amended complaint, that Vincent Webster, Sr., is still alive, thus demonstrating that Vincent Webster, Jr. would “receive nothing under [the] 1985 will.” Choyce makes the same point in his brief. Mr. Webster, Sr., who was born in 1963, was still living at the time the will contests were filed. Colvin and Vincent Webster have not, so far as it can be ascertained from this record, challenged the accuracy of the statements about Mr. Webster, Sr.’s continued existence.
We close by noting our agreement with the trial court that the proposed pleadings were sham.
This court explained the “sham pleading” doctrine in Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946: “ ‘Generally, after an amended pleading has been filed, courts will disregard the original pleading. [Citation.] [¶] However, an exception to this rule is... where an amended complaint attempts to avoid defects set forth in a prior complaint by ignoring them. The court may examine the prior complaint to ascertain whether the amended complaint is merely a sham.’ [Citation.] The rationale for this rule is obvious. ‘A pleader may not attempt to breathe life into a complaint by omitting relevant facts which made his previous complaint defective.’ [Citation.] Moreover, any inconsistencies with prior pleadings must be explained; if the pleader fails to do so, the court may disregard the inconsistent allegations. [Citation.] Accordingly, a court is ‘not bound to accept as true allegations contrary to factual allegations in former pleadings in the same case.’ [Citation.]” (See also Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 836-837; 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1190, pp. 621-622.) Stated more succinctly, a party is “not... allowed to amend the complaint to state a fact directly contradictory to one stated previously. ‘[A] plaintiff may not discard factual allegations of a prior complaint or avoid them by contradictory averments in, a superseding, amended pleading.’ [Citation.]” (Continental Ins. Co. v. Lexington Ins. Co. (1997) 55 Cal.App.4th 637, 646.)
It would be hard to think of a clearer illustration of where the sham pleading doctrine could be applied. Colvin started off by alleging that Choyce read the will to Ms. Holmes. When the disadvantageous legal consequences of this allegation became known, Colvin dropped it and switched gears. The allegation was now that, yes, Choyce did read something aloud to Ms. Holmes, but it was not what she wanted and did not express her testamentary desires. When the trial court required Colvin and Vincent Webster to identify the factual basis for the changed allegation, they named Mr. Johnson as the source. But Mr. Johnson then told the court under penalty of perjury that he provided no information that would have supported the change of position reflected in the proposed second amended complaint. Indeed, Mr. Johnson’s declaration was more than sufficient to raise a substantial doubt about the good faith behind the latest effort to file the amended pleading. Although Colvin and Vincent Webster try to argue that it was improper for the court to consider any material beyond the face of the proposed pleading, they supported their final two requests for leave by submitting declarations by their counsel. Not only does the old adage about sauces and geese come to mind, this was not a demurrer situation, but a proceeding conducted according to Code of Civil Procedure section 473, where extrinsic evidence is not uncommon. (See, e.g., Rappelyea v. Campbell (1994) 8 Cal.4th 975, 983; Lynch v. Spilman (1967) 67 Cal.2d 251, 264; Bastajian v. Brown (1941) 19 Cal.2d 209, 212-214; Contreras v. Blue Cross of California, supra, 199 Cal.App.3d 945, 951; In re Marriage of Carter (1971) 19 Cal.App.3d 479, 493; Sudden Lumber Co. v. Singer (1930) 103 Cal.App. 386; 391.)
For each and all of the three reasons given by the trial court, we conclude that no abuse of discretion occurred when the trial court made the July 23 order. (Reynolds v. Bement, supra, 36 Cal.4th 1075, 1091; Lynch v. Spilman, supra, 67 Cal.2d 251, 257.)
Choyce and the Websters ask that we award them attorney’s fees they have incurred “for having to defend this frivolous appeal.” The requests are denied on the ground that neither request is in form specified by California Rules of Court, rule 8.276(b).
DISPOSITION
The orders are affirmed.
We concur: Haerle, Acting P.J., Lambden, J.