Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. PR159432
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
This action arises from the claim of appellant Steven C. Fanelli that respondent Virginia Fanelli, in her capacity of trustee, has misappropriated trust assets that should have been distributed to trusts that would benefit Steven as a beneficiary of those trusts. Steven filed a petition to determine the validity of a trust provision, for breach of trust, to compel an accounting, and to appoint a successor trustee. Virginia filed a motion for judgment on the pleadings, in which she contended that the petition was time-barred under all applicable statutes of limitation.
Hereafter, we will refer to the parties by their first names for purposes of clarity and not out of disrespect. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
The trial court granted the motion for judgment on the pleadings, concluding that Steven’s petition, filed on May 1, 2006, was untimely filed under the three-year statute of limitations for breach of trust actions set forth in Probate Code section 16460, subdivision (a)(1) because Steven was placed on inquiry notice regarding his claims by Virginia’s May 11, 2000, letter and informal report of trust assets and liabilities. The trial court also denied Steven’s request for leave to amend.
All further statutory references are to the Probate Code unless otherwise indicated.
On appeal, Steven contends his petition was timely filed less than three years after his discovery in August 2005 of facts suggesting that Virginia had misappropriated trust assets. Alternatively, Steven requests leave to amend his complaint to allege additional facts that would show that the May 11, 2000, letter and informal report of trust assets and liabilities did not place him on inquiry notice and therefore the statute of limitations did not begin to run until August 2005.
For reasons that we will explain, we conclude that the allegations of the petition are sufficient to show that the petition was timely filed under the section 16460, subdivision (a)(2) three-year statute of limitations for a breach of trust action. We will therefore reverse the judgment
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Fanelli Trusts
Dominic and Virginia Fanelli married in 1982. Dominic had four adult children from a prior marriage, including Steven. Virginia had two adult children from a prior marriage. As part of their estate planning, Dominic and Virginia established The Fanelli 1987 Living Trust (the Trust). On November 5, 1996, Dominic and Virginia executed a third amendment to the Trust, which completely restated the terms of the Trust and was intended to dispose of all of Dominic’s and Virginia’s property. The terms of the third amendment provide that, upon the death of the first spouse to die, the Trust estate will be divided into three subtrusts, including the survivor’s trust, the family trust, and the marital trust. An inventory of the property included in the Trust estate is described in exhibit A to the third amendment.
The third amendment also provides that the assets to be allocated to the survivor’s trust include the surviving spouse’s separate property and share of community property; the deceased spouse’s interest in the family home, the furniture and furnishings; the “Santa Teresa real property”; and the deceased spouse’s cash or assets in the amount of $330,000. Upon the death of Virginia as the surviving spouse, the family residence, the furniture and furnishings, and the Santa Teresa property are to be distributed in equal shares to the issue of both Dominic and Virginia. The remaining assets are to be distributed in equal shares to Virginia’s issue. However, the third amendment additionally provides that the surviving spouse retains the right to withdraw any portion of the assets and the power to amend or revoke the survivor’s trust.
The family trust is an irrevocable trust. The assets to be allocated to the family trust include “the maximum sum that did not qualify for the federal estate tax marital deduction.” Upon the death of the surviving spouse, the trust assets are to be distributed to Dominic’s issue.
The marital trust is also an irrevocable trust. The assets to be allocated to the marital trust include the remaining trust assets not allocated to either the survivor’s trust or the family trust. Upon the death of the surviving spouse, the marital trust’s assets are to be distributed to Dominic’s issue.
On December 23, 1997, shortly before Dominic died, Dominic and Virginia executed a fourth amendment to the Trust, which amended the successor trustee paragraph and substituted an amended exhibit A. As amended, the successor trustee paragraph provides that the surviving spouse will serve as the sole trustee of all trusts, unlike the successor trustee paragraph in the third amendment that had provided for a cotrustee.
Dominic died on January 9, 1998. Thereafter, Virginia became the trustee of the survivor’s trust, the family trust, and the marital trust, and the assets of the Trust estate were allocated to those trusts. After the assets were allocated, Virginia withdrew all assets from the survivor’s trust and set up her own trust. She also sold the family residence.
B. The Petition
On May 1, 2006, Steven filed a petition pursuant to sections 16420 and 17200, subdivisions (b)(3) and (b)(7) to determine the validity of a trust provision, for breach of trust, to compel an accounting, and to appoint a successor trustee. The petition alleges that Virginia, in her capacity of trustee, committed wrongdoing in several respects.
The record reflects that the petition was originally filed in March 2006 in Santa Cruz County Superior Court, then “dropped” from the calendar in Santa Cruz County and filed in Santa Clara County Superior Court on May 1, 2006.
Section 16420 provides, “(a) If a trustee commits a breach of trust, or threatens to commit a breach of trust, a beneficiary or cotrustee of the trust may commence a proceeding for any of the following purposes that is appropriate: [¶] (1) To compel the trustee to perform the trustee’s duties. [¶] (2) To enjoin the trustee from committing a breach of trust. [¶] (3) To compel the trustee to redress a breach of trust by payment of money or otherwise. [¶] (4) To appoint a receiver or temporary trustee to take possession of the trust property and administer the trust. [¶] (5) To remove the trustee. [¶] (6) Subject to Section 18100, to set aside acts of the trustee. [¶] (7) To reduce or deny compensation of the trustee. [¶] (8) Subject to Section 18100, to impose an equitable lien or a constructive trust on trust property. [¶] (9) Subject to Section 18100, to trace trust property that has been wrongfully disposed of and recover the property or its proceeds. [¶] (b) The provision of remedies for breach of trust in subdivision (a) does not prevent resort to any other appropriate remedy provided by statute or the common law.”
In pertinent part, section 17200 provides “(a) Except as provided in Section 15800, a trustee or beneficiary of a trust may petition the court under this chapter concerning the internal affairs of the trust or to determine the existence of the trust. [¶] (b) Proceedings concerning the internal affairs of a trust include, but are not limited to, proceedings for any of the following purposes: [¶] . . . [¶] (3) Determining the validity of a trust provision. [¶] . . . [¶] (7) Compelling the trustee to report information about the trust or account to the beneficiary, if (A) the trustee has failed to submit a requested report or account within 60 days after written request of the beneficiary and (B) no report or account has been made within six months preceding the request.”
1. Refusal to Deliver Exhibit A to the Third Amendment
Steven alleges that Virginia refused to deliver a copy of exhibit A to the third amendment. He states at paragraph 8.2, “Petitioner, without this EXHIBIT A, is unable to determine the characterization of the assets at the time this Third Amendment was executed. Petitioner believes the value of Dominic’s separate property assets, at the time the Third Amendment was signed, was approximately $2,000,000.00.”
2. The Invalid Exhibit A to the Fourth Amendment
Steven also alleges that exhibit A to the fourth amendment, dated December 6, 1997, and attached to the petition as exhibit E, is probably a forgery. He attached as exhibit H to the petition the August 29, 2005, report of a forensic document examiner, David S. Moore, who concluded that Dominic “probably did not write his purported signature” on exhibit A to the fourth amendment and that “[t]here are some indications” that Virginia “may have written the questioned ‘Dominic A. Fanelli’ signature . . . .”
Steven further alleges that he received the signed exhibit A to the fourth amendment from Virginia’s attorney in a letter dated March 11, 2005, which he attached to the petition as exhibit E. He had previously received an unsigned exhibit A to the fourth amendment from Virginia’s attorney in a letter dated February 9, 1998, which was attached to the petition as exhibit F. The signed and unsigned exhibits A differed in that the unsigned exhibit A listed only two items of Dominic’s separate property, an IRA account and a 45 percent interest in Gilroy Associates, Ltd., while the signed exhibit A listed community property and both Dominic’s and Virginia’s separate property.
Based on his allegation that Dominic’s signature on the signed exhibit A to the fourth amendment might have been forged by Virginia, Steven asserts that the signed exhibit A is invalid and, if the exhibit A to the third amendment was properly executed, it should become the operative exhibit A for purposes of asset allocation. Alternatively, Dominic asserts that, in the absence of a properly executed exhibit A to the third amendment, “the trust assets should retain their original character at the time the assets were first transferred to the Trust.”
3. Breach of Trust
Additionally, Steven alleges that Virginia committed breach of trust by violating her fiduciary duty as a trustee. In addition to presenting the forged exhibit A to the fourth amendment, Steven asserts that Virginia “used this invalid document to justify her allocation of assets to the survivor’s trust for her sole benefit. . . . .” He also asserts that Virginia failed to disclose her activities to the beneficiaries, failed to “fully respond” to requests for detailed information regarding her activities, and failed to administer the trust in accordance with Dominic’s intent by withdrawing the assets of the survivor’s trust and creating her own trust.
According to Steven, Virginia provided only summary information about her activities, as shown by the informal report of trust assets and liabilities dated January 9, 1998, and attached to Virginia’s letter of May 11, 2000, to Steven and his brothers. The January 9, 1998 informal report indicated that at the time of Dominic’s death the total value of the family trust was $625,000 (including life insurance proceeds of $11,506 and a 45 percent interest in Gilroy Associates, Ltd. valued at $613,493), while the total value of the marital trust was $189,865. The letter of May 11, 2000, contained Virginia’s description of the steps she had taken since Dominic’s death to manage the trust assets and liabilities.
Steven further alleges that Dominic intended that his issue receive an interest in the family residence and the Santa Teresa real property, and that he and the other beneficiaries have suffered damages associated with the loss of property that should have been allocated to the marital trust and the family trust.
4. Accounting
Steven seeks an order compelling Virginia to file a detailed accounting that identifies and values all property owned by Virginia and Dominic at the time of Dominic’s death, identifies the allocation of assets and debts to the subtrusts, and values the survivor’s trust and the property contained in that trust at the time Virginia withdrew all assets from the trust.
5. Appointment of Successor Trustee
Finally, Steven requests that Virginia be removed as trustee of the marital trust and the family trust due to her breach of trust and that a successor trustee be appointed.
C. The Motion for Judgment on the Pleadings
On July 28, 2006, Virginia filed a motion for judgment on the pleadings on the ground that Steven’s petition was time-barred under all applicable statutes of limitation.
First, Virginia argued that the petition was untimely filed pursuant to section 16061.8, which provides that where a notification is served pursuant to part 4, division 9, chapter 1 of the Probate Code, an action to contest the trust must be brought no more than 120 days from the date of service or 60 days from the date of mailing or personal delivery of a copy of the terms of the trust. Virginia asserted that Steve had admitted that he received notification under section 16061.7, subdivision (a) on January 29, 1998, and therefore his petition contesting the trust was untimely filed on May 1, 2006.
Section 16061.7, subdivision (a) provides, “A trustee shall serve a notification by the trustee as described in this section in the following events: [¶] (1) When a revocable trust or any portion thereof becomes irrevocable because of the death of one or more of the settlors of the trust, or because, by the express terms of the trust, the trust becomes irrevocable within one year of the death of a settlor because of a contingency related to the death of one or more of the settlors of the trust. [¶] (2) Whenever there is a change of trustee of an irrevocable trust. The duty to serve the notification by the trustee is the duty of the continuing or successor trustee, and any one cotrustee may serve the notification.”
Second, Virginia contended that, absent notification, the petition was untimely filed because the limitations period for a trust contest in the absence of notification is three, four or five years, depending on the nature of the allegations and whether personal or real property was involved. Because Steven had received an unsigned exhibit A to the fourth amendment on February 9, 1998, which listed only two items as Dominic’s separate property, as well the May 11, 2000, letter and informal report disclosing trust assets, Virginia asserted that his suspicions should have been aroused no later than May 11, 2000, and therefore the petition was untimely filed nearly six years later.
Third, Virginia argued that the petition was untimely filed pursuant to section 16460, subdivision (a)(1) which provides a three-year limitations period for a claim against the trustee for breach of trust where the “beneficiary has received an interim or final account in writing, or other written report, that adequately discloses the existence of a claim against the trustee for breach of trust.” She explained that the existence of Steven’s claim was adequately disclosed by her May 11, 2000, letter and the January 9, 1998, interim report since those documents disclosed that the value of Dominic’s separate property was substantially less than the $2 million that Steven alleged in the petition was the value of Dominic’s separate property prior to his death.
Section 16460, subdivision (a)(1) provides, “(a) Unless a claim is previously barred by adjudication, consent, limitation, or otherwise: [¶] (1) If a beneficiary has received an interim or final account in writing, or other written report, that adequately discloses the existence of a claim against the trustee for breach of trust, the claim is barred as to that beneficiary unless a proceeding to assert the claim is commenced within three years after receipt of the account or report. An account or report adequately discloses existence of a claim if it provides sufficient information so that the beneficiary knows of the claim or reasonably should have inquired into the existence of the claim.”
Finally, Virginia argued that Steven was not entitled to an accounting of the marital trust or the family trust because he was not a beneficiary to whom income or principal was required to be distributed.
D. Opposition to the Motion for Judgment on the Pleadings
Responding to Virginia’s statute of limitations argument, Steven contended that his petition was timely filed on May 1, 2006, for two reasons. First, Steven asserted that section 16061.8 limitations period for a trust contest where notification is received did not apply because he had not received a complete copy of the terms of the trust.
Second, Steven argued that his petition was not time-barred under the three-year limitations period provided by section 16460 for a breach of trust claim because he did not suspect that Dominic’s signature on exhibit A to the fourth amendment was a forgery until his attorney received the signed exhibit in March 2005. According to Steven, nothing in Virginia’s letter of May 11, 2000, and the informal reports of the trust assets and liabilities “would cause a reasonable person to inquire into the existence of a claim of forgery.”
Steven further argued that Virginia had a statutory duty to provide information about the marital and family trusts and the court was authorized to compel an accounting of the assets of the survivor’s trust due to Virginia’s material breach of trust.
Alternatively, Steven requested that he be granted leave to amend his petition in the event the trial court granted the motion for judgment on the pleadings. However, Steven did not describe the substance of any proposed amendments.
E. The Trial Court’s Order
In its order of September 21, 2006, the trial court granted Virginia’s motion for judgment on the pleadings on the ground that Steven’s petition was time-barred. The court rejected Virginia’s argument that the petition was not timely filed within the limitations period set forth in section 16061.8 for a trust action where notification was given, finding that the petition failed to allege that Steven had received notification and a copy of the notification was not attached as an exhibit to the petition. Instead, the trial court determined that the applicable statute of limitations was the three-year limitations period provided by section 16460, subdivision (a)(1) for a breach of trust claim, because the Probate Code’s more specific statute of limitation applied over the general statutes of limitation set forth in the Code of Civil Procedure.
The trial court found that under section 16460, subdivision (a)(1) the “May 11, 2000 letter and list of assets and liabilities was sufficient to begin the running of the statute of limitations if it adequately disclosed the existence of a claim against the Trustee ([Virginia] here); meaning, did it provide sufficient information so that the beneficiary ([Steven] here) knew of his claim or reasonably should have inquired into the existence of the claim after receiving it.” The trial court also determined that Steven’s claim, as stated in the petition, “is essentially that [Dominic] had separate property of significant value before his death (approximately $2 million, Petition at [paragraph] 8.[2]) that was not properly allocated amongst the subtrusts after his death.”
The trial court then concluded that the petition was untimely filed under section 16460, subdivision (a)(1) for the following reasons: “The May 11, 2000 letter and report set forth [Virginia’s] version of the estate planning decisions made by [Dominic] and herself and her representation of the total assets and liabilities of the Family and Marital sub-trusts as of January 9, 1998 (after [Dominic’s] death). The assets represented in the May 11, 2000 report so differed from [Steven’s] stated beliefs as to [Dominic’s] finances and intentions that he reasonably should have inquired into whether the Trustee had committed fraud or misallocated assets upon receiving it. Therefore, the May 11, 2000 letter and report was sufficient to start the three-year statute of limitations established by [section] 16460 [subdivision] (a)(1) and [Steven’s] claims against [Virginia] (the Trustee) became time-barred no later than May 2003.” The trial court also stated, “It is irrelevant to the limitations issue that [Steven] may not have discovered the mechanism by which the alleged fraud was accomplished (the alleged forgery) until March 2005.”
The trial court denied Steven’s request for leave to amend his petition on the ground that the question of whether the petition was time-barred was a legal issue that could not be altered by amendment of the petition. Finally, the court ruled that Steven’s requests to remove the trustee and for an accounting of the subtrusts failed because these requests were dependent on the time-barred claims that Virginia had breached her duty as trustee and committed fraud.
Judgment of dismissal on the order granting the motion for judgment on the pleadings was entered on November 17, 2006. Thereafter, Steven filed a timely notice of appeal.
III. DISCUSSION
On appeal, Steven contends that the trial court erred in granting the motion for judgment on the pleadings because the petition was timely filed under section 16460, subdivision (a)(1). Steven maintains that he was not placed on inquiry notice regarding his claims against Virginia until March 2005, when she presented the forged exhibit A to the fourth amendment, and August 2005, when he ascertained (from the forensic document examiner) that Dominic’s signature on exhibit A to the fourth amendment was probably forged. Alternatively, Steven argues that the trial court abused its discretion in denying his request for leave to amend the petition. We will begin our analysis with a review of the procedure for a motion for judgment on the pleadings and the appropriate standard of review.
A. Motion for Judgment on the Pleadings
A motion for judgment on the pleadings is analogous to a general demurrer, but is made after the time to file a demurrer has expired. (Code Civ. Proc., § 438, subd. (f)(2); Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 602.) “A defendant is entitled to judgment on the pleadings if the plaintiff’s complaint does not state a cause of action. In considering whether a defendant is entitled to judgment on the pleadings, we look only to the face of the pleading under attack and do not consider matters raised in the answer. . . . A pleading which on its face is barred by the statute of limitations does not state a viable cause of action and is subject to judgment on the pleadings.” (Hunt v. County of Shasta (1990) 225 Cal.App.3d 432, 440, fn. omitted.)
B. Standard of Review
The trial court’s judgment on the order granting a motion for judgment on the pleadings is reviewed independently under the de novo standard of review. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515.) “[W]e treat the properly pleaded allegations of [the] complaint as true, and also consider those matters subject to judicial notice. [Citations.] ‘Moreover, the allegations must be liberally construed with a view to attaining substantial justice among the parties.’ [Citation.] ‘Our primary task is to determine whether the facts alleged provide the basis for a cause of action against defendants under any theory.’ [Citation.]” (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1232; Code Civ. Proc., § 452.)
Code of Civil Procedure section 452 provides, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.”
C. Analysis
In the present case, the trial court granted Virginia’s motion for judgment on the pleadings on the ground that Steven’s petition was time-barred and also denied his request for leave to amend. Applying the de novo standard of review, we will first determine whether the motion for judgment on the pleadings was properly granted.
The trial court ruled that the applicable statute of limitations was section 16460, subdivision (a)(1), the three-year statute of limitations applicable to a breach of trust claim. Section 16460, subdivision (a)(1) provides, “ ‘(a) Unless a claim is previously barred by adjudication, consent, limitation, or otherwise: [¶] (1) If a beneficiary has received an interim or final account in writing, or other written report, that adequately discloses the existence of a claim against the trustee for breach of trust, the claim is barred as to that beneficiary unless a proceeding to assert the claim is commenced within three years after receipt of the account or report. An account or report adequately discloses existence of a claim if it provides sufficient information so that the beneficiary knows of the claim or reasonably should have inquired into the existence of the claim. . . .’ ” (Noggle v. Bank of America (1999) 70 Cal.App.4th 853, 858.)
The allegations of Steven’s petition reveal that the gravamen of his claim against Virginia is breach of trust. Pursuant to section 16400, “A violation by the trustee of any duty that the trustee owes the beneficiary is a breach of trust.” “Among the duties of the trustee is the duty to administer the trust and to manage trust property ‘with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims to accomplish the purposes of the trust as determined from the trust instrument.’ (§ 16040, subd. (a); see also § 16000.)” (Estate of Gump (1991) 1 Cal.App.4th 582, 595-596.) Additionally, the trustee’s duty of loyalty (to administer the trust for the benefit of the beneficiaries) is breached where the trustee engages in self-dealing. (§ 16002, subd. (a); 16004, subd. (a); Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819, 835.)
Section 16002, subdivision (a) provides, “(a) The trustee has a duty to administer the trust solely in the interest of the beneficiaries.”
Section 16004, subdivision (a) provides, “The trustee has a duty not to use or deal with trust property for the trustee’s own profit or for any other purpose unconnected with the trust, nor to take part in any transaction in which the trustee has an interest adverse to the beneficiary.”
Here, Steven alleges that Virginia misappropriated trust assets by allocating assets to the survivor’s trust for her sole benefit, which she accomplished by forging Dominic’s signature on exhibit A to the fourth amended complaint. Steven also alleges that Virginia failed to disclose her activities as trustee to the beneficiaries and failed to administer the trust in accordance with Dominic’s intent by withdrawing the assets of the survivor’s trust and creating her own trust. Thus, Steven has stated a claim for breach of trust against Virginia. However, we determine that the applicable statute of limitations is set forth in section 16460, subdivision (a)(2), not subdivision (a)(1).
Subdivision (a)(2) of section 16460 provides, “If an interim or final account in writing or other written report does not adequately disclose the existence of a claim against the trustee for breach of trust or if a beneficiary does not receive any written account or report, the claim is barred as to that beneficiary unless a proceeding to assert the claim is commenced within three years after the beneficiary discovered, or reasonably should have discovered, the subject of the claim.”
Having liberally construed the petition as required by Code of Civil Procedure section 452, we determine that the petition was timely filed under section 16460, subdivision (a)(2). The petition states that Steven received documents from Virginia in May 2000, including the January 9, 1998, interim account of trust assets and liabilities and her May 11, 2000, letter, that indicated that the assets of the family and marital trusts (which contained Dominic’s separate property) were valued at less than $1 million. These documents alone do not disclose the existence of a breach of trust claim against Virginia.
The petition further states, at paragraph 8.2, that “[Steven] believes the value of Dominic’s separate property assets, at the time the third amendment was signed [in 1996], was approximately $2,000,000.” Significantly, the petition does not expressly allege that Steven believed at the time the third amendment was signed in 1996 that Dominic’s separate property assets were worth $2 million. To the contrary, we liberally construe the petition to allege that Steven believed, at the time he filed the petition in 2006, that Dominic’s separate property was worth $2 million in 1996.
Based on our liberal construction of the petition, we find that the May 2000 letter and the January 1998 informal report regarding trust assets and liabilities did` not give rise to a duty of inquiry under section 16460, subdivision (a)(1). Absent the allegation that Steven was aware in May 2000 that the value of Dominic’s separate property prior to his death was $2 million, which was much greater than the value of the separate property assets allocated to the family and marital trusts, Steven received insufficient information in May 2000 to put a reasonable person on notice of a potential breach of trust claim against Virginia.
Accordingly, we find no merit in Virginia’s argument that the section 16460, subdivision (a)(1) limitations period was triggered in May 2000 and therefore Steven’s petition was untimely filed more than three years later in 2006. Virginia’s argument is fatally flawed because she misconstrues the petition to allege that Steven believed prior to May 2000 that Dominic’s separate property was worth $2 million. Applying the rules governing motions for judgment on the pleadings, we treat as true Steven’s allegations that he first discovered the existence of his claim against Virginia for breach of trust in 2005, when he received the letter from Virginia’s attorney enclosing the signed exhibit A to the fourth amendment and the report of the forensic document examiner concluding that the signature on the exhibit was forged. The three-year limitations period for a breach of trust action, as set forth in section 16460, subdivision (a)(2), therefore began to run in 2005 and Steven’s petition was timely filed less than three years later in May 2006.
For these reasons, we conclude that Virginia’s motion for judgment on the pleadings should have been denied and we will reverse the judgment. Having reached this conclusion, we need not address Steven’s alternative contention that the trial court abused its discretion in denying his request for leave to amend the petition. However, we observe that Steven did not forfeit his request for leave to amend the petition due to his failure to describe his proposed amendments when making his request in the trial court. A showing that a pleading can be amended “ ‘ “need not be made in the trial court so long as it is made to the reviewing court.” ’ ” (Velez v. Smith (2006) 142 Cal.App.4th 1154, 1175.)
IV. DISPOSITION
The judgment of dismissal is reversed. Appellant is awarded his costs on appeal.
WE CONCUR: MCADAMS, J., DUFFY, J.