Opinion
B316568
09-05-2023
RONALD J. HILTON, as Special Administrator, etc., Plaintiff and Appellant, v. PAT MODUGNO, as Trustee, etc., et al., Defendants and Respondents
Hoffman, Sabban & Watenmaker, Erin L. Prouty; Bird, Marella, Boxer, Wolpert, Neissim, Drooks, Lincenberg & Rhow and Mark T. Drooks for Plaintiff and Appellant. Sacks, Glazier, Franklin & Lodise, Robert N. Sacks, John A. Scheerer, Joshua M. LeVasseur and Mary C. Lipscomb for Defendant and Respondent Pat Modugno. Skadden, Arps, Slate, Meagher & Flom, Peter B. Morrison, Virginia F. Milstead and Zachary M. Faigen for Defendant and Respondent The Conrad N. Hilton Foundation.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 20STPB01451 Michael C. Small, Judge. Affirmed.
Hoffman, Sabban & Watenmaker, Erin L. Prouty; Bird, Marella, Boxer, Wolpert, Neissim, Drooks, Lincenberg & Rhow and Mark T. Drooks for Plaintiff and Appellant.
Sacks, Glazier, Franklin & Lodise, Robert N. Sacks, John A. Scheerer, Joshua M. LeVasseur and Mary C. Lipscomb for Defendant and Respondent Pat Modugno.
Skadden, Arps, Slate, Meagher & Flom, Peter B. Morrison, Virginia F. Milstead and Zachary M. Faigen for Defendant and Respondent The Conrad N. Hilton Foundation.
ASHMANN-GERST J.
Appellant Ronald J. Hilton (Ronald), as special administrator of the estate of Marilyn June Hilton (Marilyn), appeals from orders granting the special motions to strike filed by respondents The Conrad N. Hilton Foundation (Foundation) and Pat Modugno (Modugno), as trustee of the William Barron Hilton Trust, pursuant to Code of Civil Procedure section 425.16,California's anti-SLAPP statute. Because each of the stricken claims arose from protected activity and lacked minimal merit, we affirm the trial court's orders.
For clarity, we refer to various members of the Hilton family by their first names. No disrespect is intended.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
"A 'SLAPP' is a '"strategic lawsuit against public participation"' [citation], and special motions to strike under section 425.16 are commonly referred to as '[a]nti-SLAPP motions' [citation]." (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1007, fn. 1 (Bonni).)
BACKGROUND
We draw these facts from Ronald's petition and admissible evidence submitted in connection with the anti-SLAPP motions. (See § 425.16, subd. (b)(2) [in adjudicating an anti-SLAPP motion, "the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based"].) We accept as true Ronald's pleaded facts. (Richmond Compassionate Care Collective v. 7 Stars Holistic Foundation, Inc. (2019) 32 Cal.App.5th 458, 468; Young v. TriCity Healthcare Dist. (2012) 210 Cal.App.4th 35, 54.)
A. The Hilton family
Conrad Hilton (Conrad) was the founder of Hilton Hotels Corporation (HHC). William Barron Hilton (Barron) was Conrad's son. Barron married Marilyn in 1947, when neither had significant assets. Ronald is the youngest of Barron and Marilyn's eight children.
B. Conrad's will
Conrad died in 1979. Conrad's will designated the Foundation as the sole residuary beneficiary of his estate. That bequest, however, was subject to a limitation: The will gave Barron the option to purchase HHC shares that were deemed "excess business holdings" for a private foundation under the Internal Revenue Code.
C. The settlement agreement
At the time of his death, Conrad owned approximately 28 percent of HHC stock; under the "excess business holdings rule," however, the Foundation was limited to holding a 20 percent interest in HHC. Barron claimed that all of Conrad's shares constituted excess business holdings and submitted three notices exercising his option to purchase those shares. The notices were ignored.
Years of litigation ensued between Barron and the Foundation in both state and federal courts. The California Court of Appeal eventually agreed with Barron, holding that all of Conrad's HHC shares were subject to Barron's option. (See Estate of Hilton (1988) 199 Cal.App.3d 1150.) Following that decision, in 1989, Barron and the Foundation entered into a settlement agreement (Settlement).
Pursuant to the Settlement, the parties divided Conrad's HHC stock as follows: Thirty percent was transferred outright to Barron; 26 percent was transferred outright to the Foundation; and the remaining 44 percent was placed in a trust, from which Barron, after the first three years, would receive 60 percent of the distributions during his lifetime, and the Foundation would receive 40 percent.
The Settlement also provided that, upon the fulfillment of certain conditions precedent, related court proceedings in the Los Angeles County Superior Court and the United States District Court would be terminated.
According to Ronald, Barron received his shares and distributions "without any payment or provision or other consideration, other than the release of his claim of the right to purchase shares pursuant to the option provided to him" in Conrad's will. The Settlement "changed the characterization of Barron's acquisition of the HHC shares from a purchase pursuant to an option"-which would have been purchased using community property, thus rendering the shares community property-to a separate property inheritance.
"Virtually all of the wealth accumulated by Marilyn and Barron occurred during their marriage"; therefore, "[t]he only assets that Barron could have used to pay the option price for the shares were community property."
D. Postnuptial agreement
In 1991, Marilyn and Barron signed a postnuptial agreement (Postnuptial). As relevant here, the Postnuptial provides that the HHC shares and distributions allocated to Barron by the Settlement are his separate property. Marilyn and Barron also released their marital rights under the Probate Code. Marilyn "waive[d] and release[d] all rights . . . to claim financial provision from the estate of Barron after his death[.]"
The Postnuptial provides: "Each party stipulates that he or she has been represented by counsel of his or her own choosing in connection with this agreement; that each party has had its contents fully explained by his or her respective counsel and that each party is fully aware of the contents of this agreement and its legal effect." An "Attorney's Certification" signed by Marilyn's counsel at O'Melveny & Meyers and one signed by Barron's counsel at Gibson, Dunn & Crutcher were attached to the Postnuptial. The certifications attested that each attorney had advised and consulted with his respective client and had "fully explained . . . the legal effect of the" Postnuptial, and that each client had signed the agreement "freely and voluntarily[.]"
According to Ronald, when Marilyn signed the Postnuptial, "she was suffering from multiple sclerosis, was wheelchair-bound and could not take care of herself." Ronald alleges that Marilyn signed the Postnuptial "under duress, as a result of the undue influence exerted on her by Barron and based on her fear of Barron's threats."
E. Marilyn's and Barron's deaths
Marilyn and Barron remained married until Marilyn's death in 2004. Marilyn's will, signed in 1988, left the vast majority of her estate equally to her eight children. Barron died in 2019, leaving the entire residue of his estate to the Foundation.
II. Procedural history
A. The petition
In November 2020, Ronald, in his capacity as the special administrator of Marilyn's estate, filed a petition for (1) return of property under Probate Code section 850 against Modugno and the Foundation; (2) breach of fiduciary duty under Family Code section 721 against Modugno; (3) elder abuse against Modugno and the Foundation; (4) undue influence against Modugno; (5) fraud against Modugno and the Foundation; (6) conversion against Modugno; (7) conspiracy to commit fraud against Modugno and the Foundation; and (8) conspiracy to commit conversion against Modugno and the Foundation.
All references to Modugno are to him in his capacity as the trustee of Barron's trust.
B. The anti-SLAPP litigation
1. The Foundation's motion
The Foundation filed an anti-SLAPP motion, seeking the dismissal of each of the following claims asserted against it: elder abuse, fraud, conspiracy to commit fraud, and conspiracy to commit conversion. The Foundation argued that the claims arose out of the Settlement and, therefore, fell within the scope of the anti-SLAPP statute. Further, Ronald could not establish a probability of prevailing on his claims due to affirmative defenses including the litigation privilege, the statute of limitations, the doctrine of laches, and a separate property defense.
The Foundation's anti-SLAPP motion acknowledged that Ronald purported to assert a separate claim for return of property under Probate Code section 850, but it argued that Probate Code section 850 "does not create or constitute an independent claim or cause of action[.]"
2. Modugno's joinder and motion
Modugno joined in the Foundation's motion and filed his own anti-SLAPP motion seeking to strike the conversion claim. Modugno argued that the conversion claim arose out of the Settlement and that Ronald could not establish a probability of prevailing.
3. Trial court's orders
Following a hearing, the trial court took the anti-SLAPP motions under submission. On September 20, 2021, the court issued minute orders ruling on the motions.
The trial court granted Modugno's anti-SLAPP motion as to the conversion claim. The court also granted the Foundation's anti-SLAPP motion "as to all of the claims in" Ronald's petition, "except for the claim under Probate Code section 850." The court found that the claims "ar[o]se from the settlement agreement between the Foundation and Barron . . . in 1989[,]" which was protected activity under the anti-SLAPP statute, and Ronald "ha[d] not established that there [wa]s a probability that he w[ould] prevail on any of those claims." The court "reject[ed] the Foundation's argument that [Probate Code] [s]ection 850 does not establish an independent claim or cause of action."
C. Appeal
Ronald timely appealed from the orders granting the anti-SLAPP motions.
DISCUSSION
I. The anti-SLAPP statute
"Familiarly known as the anti-SLAPP statute, [section 425.16] . . . allows defendants to seek early dismissal of unmeritorious claims arising from protected speech and petitioning activities. [Citation.]" (Bonni, supra, 11 Cal.5th at p. 1004.)
Section 425.16, subdivision (b)(1), provides: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim."
Courts employ a two-step process when analyzing an anti-SLAPP motion. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.)
Under the first step, we determine whether the moving defendant has established "that the challenged allegations or claims 'aris[e] from' protected activity in which the defendant has engaged. [Citations.]" (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park); see also Serova v. Sony Music Entertainment (2022) 13 Cal.5th 859, 871 (Serova) ["does the claim call for the anti-SLAPP statute's protections"].)
Under the second step, we determine whether the nonmoving plaintiff has "'established . . . a probability that [he . . . ] will prevail' on the challenged cause of action by showing that the claim has 'minimal merit' [citations][.]" (Abir Cohen Treyzon Salo, LLP v. Lahiji (2019) 40 Cal.App.5th 882, 887; see also Serova, supra, 13 Cal.5th at p. 871 ["does [the claim] have sufficient merit"].)
Only a claim that both arises from protected activity and lacks minimal merit may be stricken under the anti-SLAPP statute. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).) "'[T]he anti-SLAPP statute neither constitutes-nor enables courts to effect-any kind of "immunity" .... When a "'complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited'" [citation], it is not subject to being stricken as a SLAPP.' [Citation.]" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 738.)
II. Standard of review
We review de novo the grant of an anti-SLAPP motion. (Park, supra, 2 Cal.5th at p. 1067.)
III. Analysis
A. Claims stricken by the trial court and at issue on appeal
As a threshold matter, we address which claims the trial court struck when it granted the anti-SLAPP motions, as there is some dispute among the parties.
The Foundation's anti-SLAPP motion, in which Modugno joined, expressly challenged only the claims asserted against the Foundation in the petition, with the exception of the Probate Code section 850 claim, which the Foundation contended did not constitute a separate claim. All of the claims asserted against the Foundation-and thus challenged by its anti-SLAPP motion-were related to the Settlement. As the Foundation confirms in its respondent's brief, it did not move to strike any portion of Ronald's claims that concerned the Postnuptial, as "the claims and allegations regarding the [Postnuptial] were not directed toward and did not implicate the Foundation."
The trial court's minute order regarding the Foundation's anti-SLAPP motion "grant[ed] the . . . [m]otion . . . as to all of the claims in Ronald['s] . . . petition . . ., except for the claim under Probate Code [s]ection 850." Given which claims were challenged in the Foundation's motion, the only reasonable interpretation of the order is that the court struck the portion of the elder abuse claim related to the Settlement, the portion of the fraud claim related to the Settlement, the conspiracy to commit fraud claim, and the conspiracy to commit conversion claim. In a separate minute order, the court granted Modugno's anti-SLAPP motion and struck the conversion claim.
The trial court did not strike the Probate Code section 850 claim, the breach of fiduciary duty claim, the undue influence claim, the portion of the elder abuse claim related to the Postnuptial, or the portion of the fraud claim related to the Postnuptial, because neither anti-SLAPP motion was directed at those claims. Accordingly, arguments regarding those nonstricken claims are not properly before us. (See Polster, Inc. v. Swing (1985) 164 Cal.App.3d 427, 436 ["Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from"].)
Having clarified this issue, we conclude that the trial court properly granted both anti-SLAPP motions because the claims that were targeted by those motions-the portion of the elder abuse claim related to the Settlement, the portion of the fraud claim related to the Settlement, the conversion claim, the conspiracy to commit fraud claim, and the conspiracy to commit conversion claim-all arose from protected activity and lacked minimal merit to proceed.
B. Protected activity
The speech and conduct protected by the anti-SLAPP statute include, as relevant here, "any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body[.]" (§ 425.16, subd. (e)(2).) "A settlement agreement executed in the context of active litigation" is protected activity under this provision. (O&C Creditors Group, LLC v. Stephens &Stephens XII, LLC (2019) 42 Cal.App.5th 546, 566 (O&C Creditors); see also Navellier, supra, 29 Cal.4th at p. 90 ["negotiation and execution of" a release "involved 'statement[s] or writing[s] made in connection with an issue under consideration or review by a . . . judicial body' (§ 425.16, subd. (e)(2))"]; Applied Business Software, Inc. v. Pacific Mortgage Exchange, Inc. (2008) 164 Cal.App.4th 1108, 1118 ["entering into the settlement agreement during the pendency of the federal case was indeed a protected activity"].)
Ronald does not dispute that entering into a settlement agreement can constitute protected activity subject to anti-SLAPP protection. Rather, he argues that anti-SLAPP protection is not warranted here because the petition's claims do not arise from the Settlement, which he characterizes as "merely a device used by Barron to avoid having to pay for the HHC stock." According to Ronald, the claims instead "arise from Barron's wrongful taking of Marilyn's community property after the Settlement . . . was signed." (Bolding omitted.)
We cannot agree.
"A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.]" (Park, supra, 2 Cal.5th at pp. 1062-1063.) "Courts deciding an anti-SLAPP motion thus must consider the claim's elements, the actions alleged to establish those elements, and whether those actions are protected. [Citation.]" (Bonni, supra, 11 Cal.5th at p. 1015.) Doing so here, we easily conclude that the Settlement "form[s] the basis for liability" (Park, at p. 1063) for each of the stricken claims.
Elder abuse. The elements of financial elder abuse are (1) "[t]ak[ing], secret[ing], appropriat[ing], obtain[ing], or retain[ing]" or "[a]ssist[ing] in taking, secreting, appropriating, obtaining, or retaining" (2) "real or personal property" (3) "of an elder or dependent adult" (4) "for a wrongful use or with intent to defraud, or both." (Welf. & Inst. Code, § 15610.30, subd. (a)(1)-(2).) The petition alleges that "Barron and the Foundation, through the Settlement Agreement . . . misappropriated Marilyn's community property interest in the" HHC stock and trust income "for a wrongful use and with the intent to defraud Marilyn." (Italics added.) "The Foundation's active participation with regard to the Settlement Agreement was intended to deprive Marilyn of her community property interest in the HHC shares that Barron otherwise could have only purchased with community property funds." (Italics added.)
Fraud. "The elements of fraud are misrepresentation, knowledge of falsity, intent to induce reliance on the misrepresentation, justifiable reliance on the misrepresentation, and resulting damages. [Citation.]" (Missakian v. Amusement Industry, Inc. (2021) 69 Cal.App.5th 630, 653.) The petition alleges that "Barron and the Foundation made intentionally false representations and omissions to Marilyn with regard to the Settlement Agreement," failed to "consult[] Marilyn concerning her interest in the assets subject to the settlement," and failed to "obtain Marilyn's consent to the Settlement Agreement ...." (Italics added.)
Conversion. "The essential elements of conversion are: (1) the plaintiff owned or had the right to possess the personal property; (2) the defendant disposed of the property in a manner inconsistent with the plaintiff's property rights; and (3) resulting damages. [Citation.]" (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1271.) The petition alleges that "Barron converted Marilyn's community property by wrongfully entering into the Settlement Agreement, which attempted to change a community property asset stemming from a community property opportunity, into a separate property inheritance." (Italics added.)
Conspiracy. "The elements of an action for civil conspiracy are (1) formation and operation of the conspiracy and (2) damage resulting to plaintiff (3) from a wrongful act done in furtherance of the common design. [Citation.]" (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1062.) The petition alleges that Barron and the Foundation conspired to commit fraud and conversion "by depriving [Marilyn] of her community property interests[] by crafting the Settlement Agreement in such a manner as to appear to provide Barron with an inheritance, which would be his separate property ...." (Italics added.) Further, "Barron and the Foundation carried out their plan by executing the Settlement Agreement without Marilyn's participation or consent." (Italics added.)
We "assume [the petition] means what it says" (Bonni, supra, 11 Cal.5th at p. 1017), and the petition makes clear that the stricken claims "are founded upon and would not exist in absence of the protected settlement activity" (O&C Creditors, supra, 42 Cal.App.5th at p. 567). Those claims "thus '"arise from"' and are '"based on"' the [S]ettlement . . ., making them subject to the provisions of the anti-SLAPP statute. [Citations.]" (Ibid.)
Resisting this conclusion, Ronald cites readily distinguishable cases involving conduct not found to arise from protected activity. (See, e.g., Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 631 ["alleged attorney malpractice did not consist of any act in furtherance of anyone's right of petition or free speech, but [the attorneys'] negligent failure to do so on behalf of their clients"].)
Ronald relies most heavily on Optional Capital, Inc. v. DAS Corp. (2014) 222 Cal.App.4th 1388 (Optional Capital), in which the Court of Appeal reversed the grant of an anti-SLAPP motion, concluding that the plaintiff's conversion and fraudulent transfer causes of action did not arise out of protected activity. (Id. at pp. 1392, 1395-1397.) The Court of Appeal explained that the plaintiff had not sued the defendant for settling a dispute; rather, "[t]he only connection between the settlement" and the plaintiff's claims was "that the settlement was used as a device to permit [the defendant] to persuade the Swiss government to release . . . funds" from a bank account that held the plaintiff's converted money. (Id. at pp. 1400-1401.)
Here, in contrast, the Settlement was not simply "a device" (Optional Capital, supra, 222 Cal.App.4th at p. 1401) with a tenuous connection to the alleged wrongdoing. Rather, the Foundation's and Barron's acts of crafting and entering into the Settlement are "'at the heart of' and form[] the fundamental factual underpinning of" the stricken claims. (O&C Creditors, supra, 42 Cal.App.5th at p. 573.)
C. Minimal merit
Turning to the second step of the anti-SLAPP analysis, we determine whether there is any probability that Ronald could prevail on the stricken claims. (See Navellier, supra, 29 Cal.4th at p. 88 [if a court analyzing an anti-SLAPP motion finds that a claim arises from protected activity, "it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim"].) "[A]lthough section 425.16 places on the plaintiff the burden of substantiating its claims, a defendant that advances an affirmative defense to such claims properly bears the burden of proof on the defense. [Citations.]" (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 676.)
Ronald cannot establish a probability of success on any of the stricken claims because each is barred by the applicable statute of limitations. (See, e.g., Yang v. Tenet Healthcare Inc. (2020) 48 Cal.App.5th 939, 950 [finding no probability of prevailing for purposes of anti-SLAPP statute where claim was time-barred]; Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 816 (Bergstein) [same]; Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 447 [same]; Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 399 [same].)
In his respondent's brief, Modugno argues that Ronald cannot prevail on his conversion claim because, in addition to being time-barred, the property at issue is Barron's separate property, the Postnuptial bars any claim, and the doctrine of laches applies. Modugno also joins in the arguments made in the Foundation's brief. In it, the Foundation argues that Ronald cannot demonstrate a probability of prevailing on the remaining stricken claims because they are barred by the litigation privilege, statute of limitations, and laches; the stock and income received by Barron through the Settlement were his separate property by operation of law; and the claims lack evidence. Because we find that the stricken claims are all time-barred and, therefore, lack minimal merit to proceed, we need not address whether the claims are fatally deficient in other respects.
The statute of limitations for elder abuse is four years. (Welf. &Inst. Code, § 15657.7; Dennison v. Rosland Capital LLC (2020) 47 Cal.App.5th 204, 212.) The statute of limitations for fraud, conversion, conspiracy to commit fraud, and conspiracy to commit conversion is three years. (§ 338, subds. (c)(1), (d); Filmservice Laboratories, Inc. v. Harvey Bernhard Enterprises, Inc. (1989) 208 Cal.App.3d 1297, 1309 [timeliness of conspiracy claim "must be determined by reference to the statute of limitations applicable to the underlying cause of action"].) Generally, "a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period." (§ 377.20, subd. (a), italics added.)
"Critical to applying a statute of limitations is determining the point when the limitations period begins to run. Generally, a plaintiff must file suit within a designated period after the cause of action accrues. [Citation.] A cause of action accrues 'when [it] is complete with all of its elements'-those elements being wrongdoing, harm, and causation. [Citation.]" (Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal.4th 788, 797 (Pooshs).)
Here, each of the stricken claims accrued in 1989, when the Settlement was entered into and, subsequently, approved by court order. Accordingly, the applicable statutes of limitations expired over 27 years before Ronald filed the petition in 2020.
Ronald insists that his claims are timely, first contending that under Family Code section 1101, subdivision (d)(2), no statute of limitations applies. Ronald is mistaken. Family Code "[s]ection 1101, subdivision (a)[,] creates a cause of action for breach of fiduciary duty by one spouse against the other for impairment of the claimant spouse's undivided half interest in the community estate." (Yeh v. Tai (2017) 18 Cal.App.5th 953, 959.) Family Code section 1101, subdivision (d)(2), provides that "[a]n action may be commenced under this section"-that is, Family Code section 1101-"upon the death of a spouse or in conjunction with an action for legal separation, dissolution of marriage, or nullity ...." Because none of the stricken claims was brought under Family Code section 1101, Family Code section 1101, subdivision (d)(2), is simply inapplicable.
Ronald next argues that the discovery rule tolled the statutes of limitations. "The most important exception to that general rule regarding accrual of a cause of action is the 'discovery rule,' under which accrual is postponed until the plaintiff 'discovers, or has reason to discover, the cause of action.' [Citation.]" (Pooshs, supra, 51 Cal.4th at p. 797.) But, "[i]n order to rely on the discovery rule for delayed accrual of a cause of action, '[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.' [Citation.]" (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808 (Fox).)
Ronald failed to plead facts sufficient to invoke the discovery rule. The petition makes conclusory allegations that "Barron actively concealed his and the Foundation's" misconduct and that "[i]t was only after Barron's death that Ronald became aware of Barron's and the Foundation's unlawful acts[.]" These are insufficient to show the time and manner of discovery or that the claims could not have been discovered earlier. (See Fox, supra, 35 Cal.4th at p. 808 [conclusory allegations of delayed discovery will not suffice].)
Nor could Ronald plausibly plead delayed discovery. After all, the Settlement was part of the public record and widely publicized. (See NBCUniversal Media, LLC v. Superior Court (2014) 225 Cal.App.4th 1222, 1235 ["the Supreme Court has declined to delay accrual under the discovery rule where the cause of action could be ascertained from publicly available information"].) More importantly, the Postnuptial explicitly references the Settlement and confirms that the Settlement proceeds were Barron's separate property. Even if Marilyn was coerced into signing the Postnuptial, her signature and her counsel's "Attorney's Certification" demonstrate that she had knowledge of its contents and, by extension, knowledge of the Settlement and its effect on her community property rights by 1991 at the latest.
Relying on Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412 (Hobart), Ronald also seeks refuge in the relaxed discovery rule applicable when a fiduciary relationship exists between parties. (See Hobart, at p. 440 ["Although the general rules relating to pleading and proof of facts excusing a late discovery of fraud remain applicable, it is recognized that in cases involving . . . a [fiduciary] relationship facts which would ordinarily require investigation may not excite suspicion, and that the same degree of diligence is not required"].) Applying a relaxed discovery rule, the petition still fails to set forth adequate facts explaining why neither Marilyn nor Ronald could have discovered the terms of the Settlement that allegedly deprived Marilyn of her community property rights before the statutes of limitations expired.
While the petition alleges a fiduciary relationship between Marilyn and Barron, it does not allege that one existed between Marilyn and the Foundation.
Finally, Ronald argues that Modugno is equitably estopped from asserting a statute of limitations defense. "Among other things, equitable estoppel requires a showing defendants' conduct 'actually and reasonably induced plaintiffs to forbear suing' within the limitations period. [Citation.] Thus, when a defendant's conduct has deliberately induced the plaintiff to delay filing suit, the defendant will be estopped from availing himself of this delay as a defense." (Bergstein, supra, 236 Cal.App.4th at p. 820.) The petition makes no such showing.
In sum, because Ronald did not file the petition within the applicable limitations periods, he cannot show a probability of prevailing on any of the stricken claims.
DISPOSITION
The orders are affirmed. The Foundation and Modugno are entitled to costs on appeal.
We concur: LUI, P. J., CHAVEZ, J.