Opinion
F075023
04-13-2018
ANDRE FORESTIERE, Cross-complainant and Appellant, v. ROSARIO RICARDO FORESTIERE et al., Cross-defendants and Respondents.
Andre Forestiere, in pro. per., for Cross-complainant and Appellant. Gilmore Magness Janisse, David M. Gilmore and Ryan M. Janisse for Cross-defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CECG01076)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Jr., Judge. Andre Forestiere, in pro. per., for Cross-complainant and Appellant. Gilmore Magness Janisse, David M. Gilmore and Ryan M. Janisse for Cross-defendants and Respondents.
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In this dispute involving a property known as the Forestiere Underground Gardens, appellant Andre Forestiere was a party to two actions in superior court: Case No. 14CEGC02771, before Judge Kapetan, and case No. 15CECG01076, before Judge Hamilton. Andre, acting in propia persona, filed a total of three appeals in these two cases, two from the case before Judge Kapetan and one from the case before Judge Hamilton. This opinion addresses Andre's contentions in his appeal from the case before Judge Hamilton.
On October 26, 2017, respondent Rosario Forestiere filed a motion to consolidate the three appeals, case Nos. F074218, F074484, and F075023. On March 3, 2018, we ordered the appeals consolidated for purposes of oral argument only. The cases were heard together at oral argument and the consolidation order is now vacated.
This opinion disposes of case No. F075023. The issues raised in the other two appeals (involving the matter before Judge Kapetan) are disposed of in two additional opinions.
In this case, Andre presented his claims in a cross-complaint, which he filed after being named as a defendant in a complaint filed by his father, Rosario Forestiere. Andre's claims were dismissed on demurrer. Rosario then voluntarily dismissed his complaint, leading to a judgment of dismissal of the entire action. Andre appealed. We conclude the demurrer was correctly sustained and we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Rosario was married to Lorraine Forestiere from 1954 until Lorraine's death on September 21, 2012. They owned the Underground Gardens. Andre is their son. He has five siblings: Lyn Kosewski, Valery Forestiere, Nicholas Forestiere, Marc Forestiere, and Juliet Gilkey.
On April 3, 2015, while Andre's complaint against his siblings and Rosario was pending before Judge Kapetan, Rosario filed his complaint against Andre in this case. Rosario's complaint alleged that Andre lived with Lorraine during several different periods while he was an adult, including the period from 2008 until her death. During that time, Rosario was no longer living with Lorraine. The complaint alleged that, while Andre was living alone with Lorraine, he allowed the house to become unsanitary and unsafe, and neglected Lorraine as her health declined. It further alleged that Andre took advantage of Lorraine financially by not paying rent and inducing her to give him money. The complaint alleged causes of action for physical elder abuse and financial elder abuse.
Andre filed a cross-complaint on August 27, 2015. Rosario filed a demurrer, but Andre filed a first amended cross-complaint (FACC, the operative complaint now) on November 4, 2015, before the court ruled on the demurrer. As defendants, the FACC named Rosario, Andre's siblings, and Forestiere Underground Gardens, LLC (FUGLLC). Lyn and Valery were alleged to be officers of FUGLLC.
The FACC contained factual allegations about relations between the cross-defendants and Lorraine. Lorraine was born in 1932 and her health began declining in 2006. "She had difficulty walking, climbing stairs and getting out of chairs. She had episodes of fatigue and forgetfulness. She suffered from high blood pressure. Her declining mental faculties affected her memory and judgment. She became more dependent on her family for support and assistance." Lorraine had a high-school education and "little or no college level education."
In July 2007, Rosario, Marc, Lyn, Valery and FUGLLC "commenced a conspiracy" by proposing to Lorraine an agreement by which she would lease her interest in the Underground Gardens to FUGLLC. Marc read the lease agreement to Lorraine and she signed it after hearing "threats from Lyn and Valery asserting loss of support" if she did not sign. No attorney or other witness was present. At a "family meeting" held in a hotel in November 2007, with Andre and all defendants except Nicholas in attendance, Lorraine stated she did not remember signing the lease agreement. Valery replied that Lorraine "should be committed." Lorraine was distressed by this comment and left. Andre said Lorraine should have had an attorney. After this meeting, Lorraine was afraid she would be committed to an institution.
The FACC alleged that on an occasion in February 2008, "Rosario subjected Lorraine to verbal abuse and threats causing her fear, severe mental and emotional stress, and loss of sleep." Rosario threatened to have Lorraine "thrown out of her home." He had a prior history of verbally abusing Lorraine. About a week after this occasion, on February 15, 2008, Rosario caused Lorraine to sign an interspousal agreement by which he exchanged his interest in the house in which she was living for her interest in the Underground Gardens. Nicholas prepared the agreement for Rosario, and Marc delivered it to Lorraine for her signature. Before signing it, Lorraine sent Nicholas a fax stating that she wanted instead to place her interest in the Underground Gardens in a trust for the benefit of her children. She also told Marc she did not want to sign the interspousal agreement. Nevertheless, she signed it "in a state of mental fear of Rosario ... believing that she could keep her home and to protect herself from Rosario's abusive behavior." Lorraine was not advised by counsel about the interspousal agreement. The value of Lorraine's interest in the Underground Gardens exceeded the value of her interest in the house "by several hundred thousand dollars" and the transaction deprived Lorraine of the right to income from the Underground Gardens. All the defendants knew or should have known the transaction was unfair to Lorraine but still supported and promoted it.
The FACC included several allegations intended to support the proposition that the defendants "exercised undue influence" over Lorraine for the rest of her life, for the purpose of ensuring that Rosario would remain in possession of her former interest in the Underground Gardens. The defendants did this by causing Lorraine to believe "that once she signed the agreement she was bound by its terms." They also influenced Lorraine "by providing emotional support as family members during the decline of her mental and physical health as she aged." Further, the defendants influenced Lorraine "in that they controlled the financial disbursement of her community share of Rosario's teacher's pension." The defendants knew Lorraine depended on this pension. Some of them knew Rosario withheld the pension payments from 2000 to 2003 and Lorraine was afraid he would do this again. Until her death, she was afraid to assert any interest in the Underground Gardens because she feared that the defendants would withhold her pension income or have her committed to an institution.
Andre's father and siblings allegedly became Lorraine's "de facto conservators" in the summer of 2011. Valery "wanted to become the personal conservator" of Lorraine, but she was "stopped by Marc in order to prevent any judicial oversight ... which could potentially reveal the existence of ongoing financial abuse of" Lorraine.
The FACC alleged that at the end of August 2012—within weeks of Lorraine's death—Lorraine "became suicidal as a result of the abuse and neglect she suffered at the hands of" Andre's father and siblings. Lorraine "fled in fear" from Rosario and Valery and "returned to her residence bleeding and disoriented [and] in need of emergency medical aid," at which point Andre called the police
Also at the end of August 2012, Andre's father and siblings allegedly "took physical custody and possession of [Lorraine] by barring her from entering her home." They "kept" Lorraine at "various hotels" and "denied her access to reasonable medical care," all in an "effort to prevent Adult Protective Services of Fresno from contacting or interviewing her." They refused to tell Andre where Lorraine was. During this incident, Lorraine "suffered dehydration, hunger and loss of sleep," "physically collapsed outside a hotel," and "required emergency medical services."
After Lorraine's death, according to the FACC, the cross-defendants continued to conspire to maintain Rosario's wrongful ownership of Lorraine's former interest in the Underground Gardens. Acts claimed to further this alleged conspiracy included Rosario and Nicholas entering Lorraine's house and car and removing documents without permission from the probate court and Rosario falsely telling the probate court his separation from Lorraine had been amicable. The FACC says this means the cross-defendants "engaged in the spoliation of evidence by the deliberate removal of documents in direct violation of court orders in an effort to conceal from the courts the existence of financial and physical elder abuse." Finally, "[t]he last and most recent overt act of the conspiracy" was Rosario's failure to disclose to the probate court the alleged facts regarding the use of undue influence to obtain the interspousal agreement from Lorraine.
On the basis of these allegations, the FACC asserted causes of action for physical elder abuse, breach of fiduciary duty, and conversion. The breach of fiduciary duty and conversion claims were premised on allegations that Lorraine was deprived of her interest in the Underground Gardens, as well as associated equipment and revenues after Rosario wrongfully gained sole control of the property through the interspousal agreement. Based on these three causes of action, the FACC sought a declaratory judgment stating, among other things, that Andre's father and siblings were deemed to have predeceased Lorraine. Other remedies sought included compensatory damages, punitive damages, an order barring Rosario or the siblings from acting as executor of Lorraine's estate, recovery of Lorraine's former interest in the Underground Gardens, and nullification of the lease agreement.
Rosario and the siblings filed a demurrer to the FACC on December 9, 2015. The court sustained the demurrer without leave to amend on February 3, 2016. In its written order, the court ruled that all causes of action were barred by the applicable statutes of limitations.
On the claim for physical elder abuse, the court applied the two-year limitations period of Code of Civil Procedure section 335.1. The court explained that Lorraine could not have been physically abused later than September 21, 2012, the date of her death, so the limitations period expired no later than September 2014. Andre filed his original cross-complaint on August 27, 2015. The court rejected Andre's argument that Rosario and the siblings waived their statute of limitations defense by making a claim of physical elder abuse against him. The court also rejected Andre's contention that his claim for elder abuse should be construed as (or he should be allowed to amend the cross-complaint to characterize the claim as) a claim for domestic violence. The court ruled that Andre's factual allegations, if proved, would not show domestic violence as defined by statute. It also rejected Andre's argument that the facts he pleaded would establish an equitable estoppel to the limitations defense based on the idea that the cross-defendants prevented Andre from learning of the alleged physical abuse or filing suit.
On the cause of action for breach of fiduciary duty, the court ruled that a four-year limitations period applied. (Code Civ. Proc., § 343.) In the court's view, the cause of action accrued when the interspousal transfer was executed on February 15, 2008. The agreement caused the loss to Lorraine of her interest in the Underground Gardens and also the associated personal property, including the income generated by the Underground Gardens. The limitations period thus expired in February 2012, more than three years before the filing of Andre's cross-complaint.
The court applied a three-year limitations period to the cause of action for conversion. (Code Civ. Proc., § 338, subd. (c)(1).) Again, it held that the cause of action accrued on February 15, 2008, the time of the execution of the interspousal agreement, as all Lorraine's alleged economic losses stemmed from that agreement. The limitations period thus expired in February 2011. The court again rejected Andre's equitable estoppel theory.
The court also sustained the demurrer to the claim for declaratory relief, which depended on the three substantive causes of action. In denying leave to amend, the court concluded that Andre would be unable to allege facts that would show his claims were not time-barred.
After the cross-defendants' demurrer was sustained, they voluntarily dismissed their own complaint. The court thereafter entered a judgment of dismissal of the entire case.
DISCUSSION
I. Standard of Review
Andre contends the trial court erred in sustaining the demurrer and in denying leave to amend. The standard of review is well-established:
"In an appeal from a judgment dismissing an action after a general demurrer is sustained without leave to amend, our Supreme Court has imposed the following standard of review. 'The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed "if any one of the several grounds of demurrer is well taken. [Citations.]" [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.'" (Genesis Environmental Services v. San Joaquin Valley Unified Air Pollution Control Dist. (2003) 113 Cal.App.4th 597, 603.)II. Standing
As a preliminary matter, the cross-defendants contend that Andre lacks standing to bring at least some of his causes of action. All the causes of action in the FACC are survivor claims, i.e., claims originally belonging to a person now deceased and advanced by the decedent's personal representative or, if none, the decedent's successor in interest. (Code Civ. Proc., §§ 377.20, 377.30.) A personal representative is an executor of a will or administrator of an estate. (Prob. Code, § 58.) A decedent's successor in interest is "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 Civ. Proc., § 377.11.) The "'beneficiary of the decedent's estate'" means the sole beneficiary or all the beneficiaries succeeding to a cause of action, or property that is the subject of a cause of action, under a will, or else the sole person or all the persons who succeed to the cause or property under the laws of intestacy. (Code Civ. Proc., § 377.10.) The FACC fails to allege facts that would show Andre is a proper plaintiff under any of these definitions.
In fact, in 2014, before the FACC was filed, the probate court admitted to probate a 1965 will in which Lorraine left all her property to Rosario; Rosario was appointed executor. In June 2016, the probate court issued an order of final distribution of Lorraine's estate under this will. We affirmed these rulings. (Estate of Forestiere (F070300, Feb. 24, 2016) [nonpub. opn.]; Estate of Forestiere (F074089, Sep. 12, 2017) [nonpub. opn.].)
If Andre were suing as a successor in interest, he would be required to comply with Code of Civil Procedure section 377.32. That section mandates that the plaintiff file a declaration under penalty of perjury stating, among other things, that the plaintiff is the decedent's successor in interest and succeeds to the decedent's interest in the action, or is authorized to act on behalf of the decedent's successor in interest with respect to the decedent's interest in the action. The declaration must further state that no other person has a superior right to proceed in the action. There is no indication in the appellate record that Andre ever submitted such a declaration. Andre also did not plead in the FACC facts that the declaration must contain.
Andre's view of this matter appears to be that if he proves the facts he has pleaded, he will be entitled to an order under Probate Code section 259 deeming all the cross-defendants to have predeceased Lorraine, leaving him as sole successor in interest. Yet the FACC does not contain this (or any other) discussion of Andre's standing to pursue Lorraine's causes of action. Andre's appellate briefs contain no analysis of the problem of whether or how a plaintiff who is not currently a personal representative or successor in interest, but could become so if successful, can bring a survivor action. And it appears to be beyond dispute that Andre does not currently possess the status required.
In any appeal, the trial court's judgment is presumed correct, and the burden is on the appellant to show affirmatively that an error was committed. (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) A party appealing in propia persona is held to this burden just as is a party represented by appellate counsel. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) In light of Andre's failure to allege facts that would show he is a proper party to bring this survivor action, the issue presents a potentially meritorious argument for the cross-defendants. The issue was not thoroughly briefed by either side, however, so we will not decide whether Andre's pleading is incurably defective in this respect. We affirm the judgment on other grounds, as set forth below. III. Physical Elder Abuse
The trial court correctly determined that a two-year limitations period applies to Andre's cause of action for physical elder abuse. (Code Civ. Proc., § 335.1; Benun v. Superior Court (2004) 123 Cal.App.4th 113, 125-127.) The court also correctly determined that this cause of action could not have accrued later than the time of Lorraine's death in September 2012. Therefore, the court ruled correctly that the limitations period expired in September 2014 at the latest, almost a year before Andre filed his cross-complaint in August 2015.
In the portion of his opening brief discussing physical elder abuse, Andre devotes a significant quantity of argument to the proposition that the cause of action accrued not in February 2008 but at the time of Lorraine's death in September 2012. We need not address that discussion, since the cause of action is time-barred even assuming it did accrue at the time of Lorraine's death.
Andre suggests that the cross-defendants took action after Lorraine's death that caused him not to file suit. If this were so, Andre could perhaps use the doctrine of equitable estoppel to overcome the statute-of-limitations defense. Equitable estoppel is "[a]n estoppel to set up the defense of the statute of limitations ... as a result of some conduct by the defendant, relied on by the plaintiff, that induces the belated filing of an action." (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 762, p. 993, italics omitted.) But the allegations he mentions in this context would not show that he was prevented from filing suit. For instance, Andre points out that the FACC alleged that the cross-defendants concealed Lorraine's whereabouts from him. Yet that allegation is part of the description of events at the end of August 2012, which included Andre calling the police because Lorraine was bleeding, disoriented, and in need of emergency medical assistance. That account is not consistent with a claim that Andre could not file suit due to ignorance caused by the cross-defendants' concealment of facts. It instead indicates that he had contemporaneous knowledge. Andre also refers to spoliation and concealment of evidence, but the allegations in the FACC regarding this say little about what was destroyed or concealed. Further, the allegations assert that these actions hoodwinked the court, not that they prevented Andre from knowing what happened to Lorraine. The FACC fails to explain how these alleged actions interfered with Andre filing suit.
Andre asserts that because of the cross-defendants' alleged misdeeds, the doctrine of unclean hands also should prevent them from relying on the statute of limitations. As the trial court pointed out in a slightly different context, however, unclean hands is a defensive doctrine, not a doctrine to be used in service of a plaintiff's (or cross-complainant's) cause of action. (See Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 978-979.) It cannot be used to revive a stale claim.
Andre contends that he should be allowed to amend his cross-complaint to redescribe this cause of action as one for domestic violence, and thereby take advantage of a three-year statute of limitations set forth in Code of Civil Procedure section 340.15. That statute allows a civil action to be brought within three years of the last act of domestic violence or within three years of the date the plaintiff discovers or reasonably should have discovered the illness or injury caused by an act of domestic violence. Andre claims the facts already alleged in the FACC would establish domestic violence if proved.
"Domestic violence" for purposes of an action under Code of Civil Procedure section 340.15 has the meaning set forth in Family Code section 6211. Family Code section 6211 defines domestic violence as "abuse" against specified persons. Family Code section 6203 defines "abuse":
"(a) For purposes of this act, 'abuse' means any of the following:
"(1) To intentionally or recklessly cause or attempt to cause bodily injury.
"(2) Sexual assault.
"(3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
"(4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.
"(b) Abuse is not limited to the actual infliction of physical injury or assault.
Andre argues that Rosario "knowingly engaged in conduct that was reckless" toward Lorraine and Andre's siblings aided and abetted Rosario. The reference to recklessness in Family Code section 6203, however, concerns recklessly causing or attempting to cause bodily injury. The FACC does not allege that the cross-defendants recklessly caused or attempted to cause bodily injury to Lorraine. There is an allegation that Lorraine was bleeding in August 2012, but the FACC does not assert that this was because the cross-defendants injured her.
We conclude the FACC does not allege facts sufficient to state a cause of action for domestic violence. Andre had not offered any additional facts he could allege to make his complaint sufficient to plead that cause of action. IV. Breach of Fiduciary Duty
The trial court correctly determined that a four-year limitations period applies to Andre's cause of action for breach of fiduciary duty. (Code Civ. Proc., § 343; David Welch Co. v. Erskine & Tulley (1988) 203 Cal.App.3d 884, 893, overruled on other grounds by Lee v. Hanley (2015) 61 Cal.4th 1225, 1239.) The court also correctly determined that this cause of action accrued at the time of the execution of the interspousal agreement in February 2008. Therefore, the court ruled correctly that the limitations period expired in February 2012, more than three years before Andre filed his cross-complaint in August 2015.
Andre argues that the breach of fiduciary duty cause of action accrued at the time of Lorraine's death. Although unclear from Andre's briefs, this argument appears to be based on the idea that, under Family Code section 1100, Rosario had a fiduciary duty, as Lorraine's spouse, to manage community property for her benefit; and because the interspousal agreement was invalid, he committed ongoing breaches of his duty by retaining her interest in the Underground Gardens, their equipment, and the revenues they generated, up until her death. The trial court's approach, however, was to view the original act that initiated these harms—the execution of the interspousal agreement—as the accrual point, not the ongoing harms that followed.
In the brief they submitted to the trial court in support of their demurrer, the cross-defendants conceded that Rosario had a fiduciary duty to Lorraine under Family Code section 1100.
In this context, Andre also refers to royalties from a book. The FACC states: "[Andre] is also informed and believes that [Lorraine] was wrongfully deprived of her share of royalties from the sale of the book on the Gardens by Silvio Manno." The FACC contains no allegations, however, about who owned the right to these royalties or how, when, or by whom Lorraine was "deprived" of them. The mere assertion that certain property existed and a party did not receive it is not sufficient to state a cause of action for breach of fiduciary duty. --------
At least with respect to merely retaining property, the trial court's approach is supported by precedent. (See, e.g., Institoris v. City of Los Angeles (1989) 210 Cal.App.3d 10, 17-18 [inverse condemnation cause of action based on airport noise accrued at beginning of period when flights interfered with use and enjoyment of property, not end of period]). With respect to additional takings of property—as conceivably could be the situation with revenues—the allegations in the FACC are insufficient. The FACC merely states that there were revenues. It says nothing about when or how often they might have been earned. There is no basis in those allegations for fixing an accrual date later than that of the interspousal agreement.
Andre also argues that equitable estoppel bars the cross-defendants from relying on the statute of limitations based on any date earlier than that of Lorraine's death. Here, Andre relies on a theory of equitable estoppel based on a form of duress. (See, e.g., Ateeq v. Najor (1993) 15 Cal.App.4th 1351, 1357 [equitable estoppel applied where defendant caused plaintiff to delay filing action by threatening to have plaintiff deported].) The gist of Andre's argument seems to be that the interspousal agreement was a product of the cross-defendants' undue influence on Lorraine and that this undue influence, together with other behavior by the cross-defendants in the years after the execution of the agreement, deterred Lorraine from suing during her lifetime. We reject this argument. Assuming the allegations in the FACC would be sufficient to show Lorraine signed the interspousal agreement because of undue influence by the cross-defendants, neither these allegations nor others related to the cross-defendants' behavior after that time would be enough, if proved, to show that she refrained from filing suit for breach of fiduciary duty for four years because of duress.
In this context, Andre also refers to his allegations that Rosario and Nicholas secreted evidence and misled the probate court after Lorraine's death. These allegations are irrelevant here, since the limitations period for this cause of action expired in February 2012, while Lorraine was alive and months before that alleged misconduct. V. Conversion
The trial court correctly determined that a three-year limitations period applies to Andre's cause of action for conversion. (Code Civ. Proc., § 338, subd. (c)(1); Lowe v. Ozmun (1902) 137 Cal. 257, 258-259.) The court also correctly determined that this cause of action accrued at the time of the execution of the interspousal agreement in February 2008. Therefore, the court ruled correctly that the limitations period expired in February 2011, more than four years before Andre filed his cross-complaint in August 2015.
Challenging these conclusions, Andre makes the same arguments he makes regarding breach of fiduciary duty: The cause of action did not accrue until Lorraine's death because of the cross-defendants' behavior subsequent to the execution of the interspousal agreement; and the limitations defense is barred by equitable estoppel. We reject these arguments for the reasons stated in our discussion of the breach of fiduciary duty cause of action above.
Andre here again refers to alleged secreting of evidence and misleading of the probate court after Lorraine's death, but this is once again irrelevant, as it happened after the limitations period expired.
Finally, Andre contends that he should be allowed to amend his cross-complaint to characterize this cause of action as one for financial elder abuse, and thereby take advantage of the four-year limitations period for that claim. This would not help him, however. The cause of action would still have accrued in February 2008 and thus would have expired in February 2012, more than three years before the original cross-complaint was filed. VI. Declaratory Judgment
Andre argues that the trial court erred in sustaining the demurrer on his request for a declaratory judgment. As this request is dependent on the three substantive causes of action discussed above, we need not address it separately. VII. Leave to Amend
In addition to the proposed amendments discussed and rejected above, Andre makes general assertions that he should have been allowed to amend his cross complaint. These general assertions are unhelpful, as the burden is on Andre to show specifically how he could cure the defects in the FACC.
Andre also refers to changes included in a proposed second amended cross-complaint (SACC) that he unsuccessfully sought leave to file shortly before the demurrer to the FACC was sustained. One group of proposed changes restates, at greater length and with additional emphasis, the allegations that the cross-defendants took documents from Lorraine's house and car after her death, thereby violating orders of the probate court and furthering a conspiracy. These changes would not cure the defects we have discussed. On the claim of physical elder abuse, the amended allegations would still not suffice to support the view that Andre was prevented from filing suit before the limitations period expired (at the latest) in September 2014. On the claims of breach of fiduciary duty and conversion, the amended allegations would be irrelevant, because they concern events that took place after the limitations period had expired.
A proposed change to the conversion cause of action would add references to equipment used at the Underground Gardens and royalties from a book about the Underground Gardens. Similar references are already included in the FACC under the heading of breach of fiduciary duty. This addition would not alter any part of our analysis.
Finally, the proposed SACC would have added two paragraphs to the cause of action for declaratory relief. These paragraphs touch on a variety of topics, including an alleged fraud on the probate court, the alleged criminal status of the cross-defendants' behavior, and Andre's request that the cross-defendants be deemed to have predeceased Lorraine. Since the allegations on the three substantive causes of action would not be cured by the proposed amendments, however, a declaratory relief request depending on those causes of action also cannot be saved. These proposed changes would be unavailing because the allegations on the substantive causes of action—on which the declaratory relief request depends—would remain insufficient.
For these reasons, there was no abuse of discretion in the denial of leave to amend. VIII. "Candor" and "Judicial Fraud"
The final sections of Andre's opening and reply briefs on appeal contain assertions that, in the course of the demurrer proceedings, the cross-defendants violated a "duty of candor" and the trial court failed to act on its own motion to "prevent judicial fraud." These contentions are based on the proposition that, in its written order sustaining the demurrer, the trial court relied on points the cross-defendants had first raised in their reply brief in support of the demurrer, thus denying Andre an opportunity to respond.
Andre has failed to preserve this contention for appeal: The demurrer hearing was not reported, and no there is no other record showing that Andre raised this issue after tentative order was issued on February 3, 2016, and before it became final following the hearing on February 3, 2016. If an objection is not preserved by some appropriate method at trial, it is forfeited on appeal. (People v. Saunders (1993) 5 Cal.4th 580, 590; Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185 fn. 1.) Even if the argument were preserved, we would not find any reversible error. Andre has had the opportunity to respond to the trial court's analysis in this court, and we have found that his arguments lack merit.
The same portions of Andre's appellate briefs also contend that the cross-defendants misrepresented the contents of the FACC in their demurrer briefs and the trial court relied on these misrepresentations. In our de novo review of the trial court's order, however, we have relied on our own reading of the FACC, not on the cross-defendants' or the trial court's representations of its contents.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
/s/_________
SMITH, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
DETJEN, J.