Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BP096081.Coleman A. Swart, Judge.
Nadejda Makarowski, in pro. per., for Plaintiff and Appellant.
Law Office of Kathryn M. Davis and Kathryn M. Davis for Defendant and Respondent.
J.ASHMANN-GERST
Appellant Nadejda Makarowski (Makarowski) is the second wife of decedent, Walter Makarowski (Walter). In his living trust, Walter left 100 percent of the trust property to his daughter, respondent Mary Christina Morrison (Morrison). Makarowski, however, believes that the living trust was amended to make her the sole beneficiary. She named Morrison in a petition and first amended petition for construction of trust instrument, ascertainment of trust beneficiaries, confirmation of trust assets, removal of trustee, order directing trustee to transfer title and accounting. Morrison demurred to the to the first amended petition based on the statute of limitations set forth in Probate Code section 16061.8. The demurrer was sustained without leave to amend. Makarowski filed this appeal in propria persona. She contends that the ruling must be reversed because it violated the Fourth, Seventh, Eighth, and Fourteenth amendments to the United States Constitution.
All further statutory references are to the Probate Code unless otherwise indicated.
We find no error and affirm.
FACTS
Makarowski filed her initial petition on January 4, 2006. Therein she alleged that Walter amended his trust by executing a holographic will leaving all his property to her rather than Morrison. Soon after, Makarowski filed her first amended petition. Morrison demurred, inter alia, on the grounds that the petition was untimely. She argued that Makarowski received the notice required by section 16061.7 on August 13, 2004, and that section 16061.8 provides that “[n]o person upon whom the notification by the trustee is served . . . may bring an action to contest the trust more than 120 days from the date the notification . . . is served.” The demurrer was sustained without leave to amend and the petition was denied based on section 16061.8.
This timely appeal followed.
STANDARD OF REVIEW
When a demurrer is sustained without leave to amend and a probate petition is dismissed, we give the petition a reasonable interpretation and deem all properly pleaded material facts admitted. “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. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) The legal sufficiency of the complaint is reviewed de novo. (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.)
DISCUSSION
In her opening brief, Makarowski did not address whether the trial court properly applied section 16061.8. Moreover, even though she claimed that her constitutional rights have been violated, she did not explain how. As a consequence, she waived her challenge to the trial court’s ruling. “‘[E]very brief should contain a legal argument with citation to authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’ [Citation.] [¶] It is the duty of appellant’s counsel, not the courts, ‘by argument and the citation of authorities to show that the claimed error exists.’ [Citation.]” (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050.)
We note that Makarowski filed an opening brief on June 7, 2007, and then filed what purported to be a second opening brief on November 14, 2007. That second brief, which was essentially a reply brief, was served a month and a half after Morrison’s respondent’s brief was served on August 31, 2007. Though Makarowski tries to grapple with section 16061.8 in her second brief, we decline to consider her belated arguments. The rule is this: “‘A point not presented in a party’s opening brief is deemed to have been abandoned or waived. [Citations.]’ [Citation.]” (Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1754, fn. 1.)
Regardless, the arguments in Makarowski’s second brief are unavailing. She claims that the section 16061.7 notification was not served within 60 days of Walter’s death, as the statute requires. But she admits that she received notice by at least February 21, 2005. Even if she received notice on February 21, 2005, her petition was still filed more than 120 days later. She does not argue that the time bar in section 16061.8 is inapplicable, nor could she.
DISPOSITION
The dismissal of Makarowski’s first amended petition is affirmed. Morrison shall recover her costs on appeal.
We concur: Acting P. J. DOI TODD, J. CHAVEZ