Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from judgments of the Superior Court of Los Angeles County No. BC346279, Ann I. Jones, Judge.
Law Office of Christie Gaumer and Christie Gaumer for Plaintiff and Appellant.
Carl Etting for Defendant and Respondent Greg Oveross.
Stewart S. Mims in pro. per.; and Hicks, Mims, Kaplan & Burns for Defendant and Respondent Stewart S. Mims.
Tamila C. Jensen in pro. per. for Defendant and Respondent Tamila C. Jensen.
Nemecek & Cole, Jonathan B. Cole, Lucy H. Mekhael and Mark Schaeffer for Defendant and Respondent Gerald T. Yoshida.
TURNER, P. J.
I. INTRODUCTION
Plaintiff, David Simon, appeals from judgments of dismissal entered after demurrers were sustained without leave to amend in favor of defendants, Gerald T. Yoshida, Tamila C. Jensen, Greg Oveross, Stewart Scott Mims, and the law firm of Hicks, Mims, Kaplan & Burns (the firm). We affirm the judgments as to Mr. Yoshida, Mr. Oveross, Mr. Mims, and the firm. We reverse the judgment as to Ms. Jensen and remand with directions.
II. BACKGROUND
The operative pleading is a February 10, 2006 first amended complaint which alleged the following. Plaintiff is the only child of Helga and Ernst Simon. Plaintiff’s parents owned nine single-family homes as joint tenants: 19641 and 19605 Victory Boulevard, Reseda; 19501 Friar Boulevard, Reseda; 10939 Osage Avenue, Inglewood; 650 S. Gretna Green Way, Los Angeles; 942 S. Stanley, Los Angeles; 716 and 806 N. Gardner, Los Angeles; and 745 N. Spaulding, Los Angeles. Plaintiff’s parents had an oral agreement, however, that the property would be held as community property. Further, Helga executed a holographic will in 1983 pursuant to which her interest in the properties passed to plaintiff. Helga predeceased her husband. Helga’s 1983 will was not probated. Instead, plaintiff and Ernst entered into an agreement. They agreed plaintiff would run the family’s tax preparation business and he would succeed to his parents’ entire interests.
For purposes of clarity, and intending no disrespect, we will refer to members of the Simon family by their first names.
In 1989, Ernst married Adelle. Thereafter, Adelle displayed “extreme animosity” toward plaintiff. Ernst suffered a massive stroke in 1997 and eventually became incompetent. Adelle isolated Ernst, preventing contact with plaintiff. Adele also took advantage of Ernst’s condition to acquire property from him. In August 1997 and April 1998, Adelle convinced Ernst to transfer to her an interest in two of the nine properties, 650 S. Gretna Green Way and 745 N. Spaulding.
In January 1998, plaintiff filed an action against Adelle and Ernst. (Simon v. Wiseley (L.A. Super. Court, No. BC185045) 1999.) The parties reached an agreement pursuant to which the action was settled and dismissed. Plaintiff received title to three of his parents’ nine real properties, 19641 and 19605 Victory Boulevard, and 19501 Friar Boulevard. A fourth property, 10939 Osage Avenue, was to be sold with the proceeds split one-third to plaintiff and two-thirds to Ernst. Plaintiff alleges: “Importantly, the settlement agreement only pertained to the Reseda and Inglewood properties, and did not provide for a general or specific release as to [plaintiff’s] claims to Helga[’s] community property interest in any other of the properties . . . . Further, [plaintiff] entered into the settlement agreement based only on the existence of Helga’s January 1983 will and no other will or codicil.” In 2001, plaintiff discovered Helga had executed a June 5, 1984 holographic will which adversely affected his rights. In 2000 and 2001, Adelle coerced Ernst to transfer to her interests in the remaining properties, 806 N. Gardner, 942 S. Stanley, and 716 N. Gardner.
On November 19, 2002, plaintiff filed a conservatorship action as to Ernst. (Conservatorship of Ernst Simon (Super. Court L.A. County, No. LP008641).) Defendants represented Ernst while the conservatorship proceedings were pending; they also represented Adelle at the same time. Mr. Yoshida represented both Ernst and Adelle from early 1998 through approximately August 2003. Mr. Mims and the firm represented Ernst and Adelle from approximately August 2003 through November 2004. In June 2003, Adelle sold the Gretna Green Way property. In January 2004, Adelle sold real property on Ivy Street. The Ivy Street property had been purchased with the proceeds of the Gretna Green Way sale. In March 2004, the probate court appointed Mr. Oveross as Ernst’s temporary conservator and Ms. Jensen as Ernst’s conservatorship attorney. In 2004, Adelle moved Ernst to Mexico. He died shortly thereafter, in November 2004. More than a year later, in December 2005, plaintiff discovered Ernst had passed away.
The first and second causes of action were brought by plaintiff in his own capacity. The first two causes of action were for negligence and fiduciary duty breach against Mr. Oveross and Ms. Jensen. Plaintiff alleges Ms. Jensen and Mr. Oveross each had a duty to represent Ernst’s person and financial interests. Because they breached their duties, plaintiff lost his interests under Helga’s 1984 will, which were held in constructive trust by Ernst. According to the first amended complaint, plaintiff’s remainder interests through Ernst, which should have been protected from Adelle’s adverse actions, were lost. Ms. Jensen and Mr. Oveross breached their duties by failing: to interview Ernst; examine Ernst’s health; to stop Adelle’s financial and physical abuse of Ernst; and to protect Ernst’s financial interests from Adelle’s adverse actions.
In the third through sixth causes of action, plaintiff sues on Ernst’s behalf. Plaintiff is suing as Ernst’s successor in interest. The third and fourth causes of action are for negligence and fiduciary duty breach against Mr. Oveross and Ms. Jensen. The fifth and sixth causes of action are for negligence and fiduciary duty breach against Mr. Yoshida, Mr. Mims, and the firm. Plaintiff alleges Mr. Yoshida, Mr. Mims, and the firm breached their duties to represent Ernst’s interests by: allowing Adelle to dominate Ernst; assisting or allowing Adelle to acquire title to the real properties and to sell them to third parties; representing Adelle and Ernst despite a nonwaivable conflict of interest; and preventing Ernst’s examination in the conservatorship proceeding.
In response to the demurrers, on June 4, 2007, plaintiff filed a statement pursuant to Code of Civil Procedure section 377.32 which stated: “I am the decedent’s successor in interest, as defined in Code of Civil Procedure section 377.11, and succeed to the decedent’s interest in the action or proceeding. . . . . [¶] . . . No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding. I am the only living heir at law. Ernst has no other children, and has no living brothers or sisters. Ernst was survived by his second wife, Adelle Wiseley Simon. However, she should not be considered the person entitled to bring claims on behalf of Ernst Simon because she has misappropriated all of his real and personal property before he died, then took him to Mexico to allow to die there. On the death certificate of Ernst Simon, he is listed as ‘Viudo’, under the blank ‘Estado Civil’, which I am informed and believe means ‘widower’ in response to the question ‘marital status.’ This shows Adelle Wiseley Simon did not consider herself to be Ernst’s Simon wife as of the date of his death.” Defendants’ demurrers to the first amended complaint were sustained without leave to amend and judgments of dismissal were entered. This appeal followed.
III. DISCUSSION
A. Standard of Review
The Supreme Court has defined our undertaking as follows, “‘Our only task in reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action.’” (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300; Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The reviewing court assumes the truth of allegations in the complaint which have been properly pleaded and gives it a reasonable interpretation by reading it as a whole and with all its parts in their context. (Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 558; People ex rel. Lungren v. Superior Court, supra, 14 Cal.4th at p. 300; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) However, the assumption of truth does not apply to contentions, deductions, or conclusions of law and fact. (People ex rel. Lungren v. Superior Court, supra, 14 Cal.4th at pp. 300-301; Moore v. Regents of University of California, supra, 51 Cal.3d at p. 125.) Furthermore, any allegations that are contrary to the law or to a fact of which judicial notice may be taken will be treated as a nullity. (Interinsurance Exchange v. Narula (1995) 33 Cal.App.4th 1140, 1143; Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955.) The Supreme Court has held: “On appeal from a judgment of dismissal entered after a demurrer has been sustained without leave to amend, unless failure to grant leave to amend was an abuse of discretion, the appellate court must affirm the judgment if it is correct on any theory. [Citations.] If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend. [Citation.] The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended. [Citation.]” (Hendy v. Losse (1991) 54 Cal.3d 723, 742; accord, Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
B. Standing
The trial court ruled plaintiff did not have standing to sue on Ernst’s behalf as a successor in interest. We disagree. A demurrer lies for lack of standing when the defect appears on the face of the pleading or from judicially noticeable matters. (Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796; Klopstock v. Superior Court (1941) 17 Cal.2d 13, 19; CashCall, Inc. v. Superior Court (2008) 159 Cal.App.4th 273, 287; O’Flaherty v. Belgum (2004) 115 Cal.App.4th 1044, 1095; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004 [judgment on the pleadings]; County of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1009.) The demurrer lies for failure to state a cause of action in the particular plaintiff. (O’Flaherty v. Belgum, supra, 115 Cal.App.4th at p. 1095; County of Fresno v. Shelton, supra, 66 Cal.App.4th at p. 1009.) Stated differently, there is a defect in the parties because the named plaintiff is not the real party in interest. (O’Flaherty v. Belgum, supra, 115 Cal.App.4th at p. 1095; Cloud v. Northrop Grumman Corp., supra, 67 Cal.App.4th at p. 1004.) Standing is a question of law subject to our independent review. (Bilafer v. Bilafer (2008) 161 Cal.App.4th 363, 368; IBM Personal Pension Plan v. City and County of San Francisco (2005) 131 Cal.App.4th 1291, 1299; McKee v. Orange Unified School Dist. (2003) 110 Cal.App.4th 1310, 1316.)
As noted above, plaintiff asserted the third through sixth causes of action for negligence and fiduciary duty breach against Mr. Oveross, Ms. Jensen, Mr. Yoshida, Mr. Mims, and the firm, on Ernst’s behalf as a successor in interest. As a successor in interest, plaintiff may assert Ernst’s rights with respect to the third through sixth causes of action. (Exarhos v. Exarhos (2008) 159 Cal.App.4th 898, 906; Serra Canyon Co., Ltd. v. California Coastal Com. (2004) 120 Cal.App.4th 663, 667.) The trial court ruled plaintiff had not sought legal authority from the probate court to sue in Ernst’s name. The trial court further found it was unlikely plaintiff would receive such authorization. This was because under the Probate Code, Adelle had a superior right to be designated administrator of Ernst’s estate. (Prob. Code, § 8461.) As a result, the trial court concluded plaintiff lacked standing to sue on Ernst’s behalf. We conclude the trial court was authorized to decide whether plaintiff could proceed as Ernst’s successor in interest. Moreover, based on the showing at the present stage of the litigation, we conclude plaintiff is Ernst’s successor in interest with respect to the causes of action asserted.
Pursuant to Code of Civil Procedure section 377.30, “A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest, subject to [Probate Code sections governing the administration of decedents’ estates], and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” The Law Revision Commission Comment to Code of Civil Procedure section 377.30 explains: “Under this section, an action or proceeding may be commenced by the decedent’s successor in interest only if there is no personal representative. The distributee of the cause of action in probate is the successor in interest or, if there is no distribution, the heir, devisee, trustee, or other successor has the right to proceed under this article.” (Cal. Law Revision Com. com. 14 West’s Ann. Code Civ. Proc. (2004 ed.) foll. § 377.30, p. 127.) In other words, an action that survives the decedent’s death may be commenced by his or her successor in interest where no estate administration proceeding is pending. (§ 377.30; Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1523-1524; Thompson-West, Cal. Civil Practice-Actions By and Against Personal Representative (2004) vol. 2, ch. 14, p. 6, Probate and Trust Proceedings, § 14.4; Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) ¶ 2:31.5, p. 2-13 (rev. #1, 2007).) “Successor in interest” is defined in Code of Civil Procedure section 377.11, “For the purposes of this chapter, ‘decedent’s successor in interest’ means 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.” A person who seeks to commence an action as the decedent’s successor in interest must file a statement supported by a declaration under penalty of perjury. (Code Civ. Proc., § 377.32 ; Cal. Law.Rev.Com.com., 14 West’s Ann. Code of Civ. Proc. (2004 ed.) foll. § 377.30, p. 127; In re A.C. (2000) 80 Cal.App.4th 994, 1002-1003.)
Code of Civil Procedure section 377.32 states: “(a) The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent’s successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following: [¶] (1) The decedent’s name. [¶] (2) The date and place of the decedent’s death. [¶] (3) ‘No proceeding is now pending in California for administration of the decedent’s estate.’ [¶] (4) If the decedent’s estate was administered, a copy of the final order showing the distribution of the decedent’s cause of action to the successor in interest. [¶] (5) Either of the following, as appropriate, with facts in support thereof: [¶] (A) ‘The affiant or declarant is the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent’s interest in the action or proceeding.’ [¶] (B) ‘The affiant or declarant is authorized to act on behalf of the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent’s interest in the action or proceeding.’ [¶] (6) ‘No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.’ [¶] (7) ‘The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.’ [¶] (b) Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact. [¶] (c) A certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration.”
The trial court erroneously concluded plaintiff was required to seek a ruling on his standing as successor in interest in the probate court. The trial court in which the action is pending has the authority to resolve the question whether the plaintiff is a successor in interest with the right to commence the action. (Code Civ. Proc., § 377.33; see In re A.C., supra, 80 Cal.App.4th at p. 1003.) Code of Civil Procedure section 377.33 states, “The court in which an action is commenced or continued under this article may make any order concerning parties that is appropriate to ensure proper administration of justice in the case, including appointment of the decedent’s successor in interest as a special administrator or guardian ad litem.” The Law Revision Commission to Code of Civil Procedure section 377.33 states, “The court in which the action or proceeding is pending has authority to resolve questions concerning the proper parties to the litigation and to make conclusive and binding orders, including determinations of the right of a successor in interest to commence or continue an action or proceeding.” (Cal. Law.Rev.Com.com., 14 West’s Ann. Code of Civ. Proc. (2004 ed.) foll. § 377.33, p. 137; see In re A.C., supra, 80 Cal.App.4th at p. 1003.)
Moreover, it appears from the face of the pleading, plaintiff’s declaration, and judicially noticeable matters, that plaintiff is a proper successor in interest. Plaintiff is Helga and Ernst’s only child. There are no probate proceedings pending as to Ernst’s estate and no personal representative has been appointed. In his first amended complaint, plaintiff alleges Adelle: exerted influence over Ernst allowing her to gain control of Simon family property; isolated Ernst preventing contact with plaintiff; and secreted Ernst away in Mexico. As noted, plaintiff’s Code of Civil Procedure section 377.32 declaration states: no other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding; plaintiff is the only living heir at law; Ernst had no other children and has no living brothers or sisters; Ernst was survived by his second wife, Adelle; she should not be considered the person entitled to bring claims on behalf of Ernst; this is because she misappropriated all of his real and personal property before Ernst died. As Helga and Ernst’s only child and a potential beneficiary of their estates and in the absence of a personal representative, plaintiff has standing to act as Ernst’s successor in interest. Ernst’s surviving spouse, Adelle, even if named as his personal representative, is unlikely to pursue any cause of action against these defendants premised on their failure to prevent her wrongdoing. (Cf. Olson v Toy (1996) 46 Cal.App.4th 818, 824 [personal representative and trustee “could hardly be expected” to sue on the estate’s behalf to declare invalid the very trust she administered].) Based on the uncontradicted evidence, plaintiff is Ernst’s successor in interest with respect to the causes of action here asserted.
Ms. Jensen has not raised any argument other than lack of standing in support of the trial court’s ruling on Ernst’s third and fourth causes of action against her. Because plaintiff has standing to sue on Ernst’s behalf, the judgment of dismissal as to Ms. Jensen must be reversed.
C. Ms. Jensen’s Duty To Plaintiff
As noted above, in his first and second causes of action, plaintiff alleges Ms. Jensen was negligent and breached her fiduciary duties to him. Plaintiff asserts Ms. Jensen owed him a duty as an intended beneficiary of the conservatorship. A duty of care owed is an essential element of both negligence and fiduciary duty breach causes of action. (Budd v. Nixon (1971) 6 Cal.3d 195, 200 [negligence]; Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 524 [fiduciary duty breach]; Hahn v. Mirda (2007) 147 Cal.App.4th 740, 745 [negligence]; Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1101 [fiduciary duty breach].) The trial court found Ms. Jensen owned no duty to plaintiff. We agree.
Plaintiff argues Ms. Jensen owed him a duty as the intended beneficiary of the conservatorship. The existence of a duty is a question of law subject to de novo review. (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395, fn. 5; Goodman v. Kennedy, supra, 18 Cal.3d at p. 342; Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46; Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 832.) The Supreme Court has held: “‘The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm.’ ([Biakanja v. Irving (1958)] 49 Cal.2d [647,] 650.)” (Goodman v. Kennedy, supra, 18 Cal.3d at pp. 342-343; accord, Summit Financial Holdings, Ltd. v. Continental Lawyers Title Co. (2002) 27 Cal.4th 705, 715.) In the context of will drafting, the Supreme Court has held, “[A]n attorney may be liable to the intended beneficiaries of a deceased testator for the amount the intended beneficiary would have received from the testator’s estate if the attorney had exercised due care in drafting the will in accordance with the testator’s expressed wishes.” (Goodman v. Kennedy, supra, 18 Cal.3dat p. 342, citing Heyer v. Flaig (1969) 70 Cal.2d 223, disapproved on another point in Laird v. Blacker (1992) 2 Cal.4th 606, 617, and Lucas v. Hamm (1961) 56 Cal.2d 583.)
Ms. Jensen owed no duty to plaintiff in his own capacity as a matter of law. Ms. Jensen had no relationship to plaintiff that would require her to protect his interests or would allow him to rely upon her to do so. Any act Ms. Jensen might have undertaken as the conservatee’s attorney would have been to discharge her obligation to Ernst; to protect her incapacitated client legally from loss or harm. This is unlike the will context, where the testator’s heirs are the intended beneficiaries of the transaction—creating a will—and are foreseeably at risk of harm. Here, plaintiff was not an intended beneficiary of the conservatorship proceeding or of Ms. Jensen’s part in it. (See Radovich v. Locke-Paddon (1995) 35 Cal.App.4th 946, 955.) The trial court properly sustained Ms. Jensen’s demurrer to the first and second causes of action without leave to amend.
D. Leave to Amend as to Mr. Oveross
Plaintiff contends he should have been granted leave to amend as to Mr. Oveross, the temporary conservatee. The first amended complaint alleges that Mr. Oveross, as temporary conservator, was negligent and breached his fiduciary duties. The trial court held the order discharging Mr. Oveross as conservator was entitled to res judicata effect and plaintiff’s claims were thus barred. We agree. Therefore, we need not consider the question whether Mr. Oveross, as conservator, owed any duty to plaintiff.
Judicially noticed court documents established that on March 11, 2005, one year after Mr. Oveross was appointed, the probate court accepted his resignation and discharged him as temporary conservator. Mr. Oveross’s verified petition states in part: “Oveross has been unable to garner the cooperation of any party involved in the conservatorship including the Conservatee, the Conservatee’s spouse, or the Conservatee’s son, who may hold adverse interest to the Conservatee . . . . Due to his inability to locate the Conservatee or his wife, the Conservator has been unable to marshal the Conservatee’s assets and therefore control or manage those assets or pay the Conservatee’s bills . . . . Due to his inability to locate the Conservatee, the Conservator has been unable to manage, control or conserve the Conservatee’s person . . . .” Plaintiff was represented by counsel in the discharge proceedings, as was Ernst. The probate court’s March 11, 2005 order recites, “Appearances were made by . . . David Coleman, representing David Simon in the conservatorship matter, Michael Moore, Deputy County Counsel, representing the Public Guardian, and Peter Gordon[,] representing David Simon in all civil matters.”
Probate Code section 2103, which applies to conservatorship proceedings, states: “(a) When a judgment or order made pursuant to this division becomes final, it releases the guardian or conservator and the sureties from all claims of the ward or conservatee and of any persons affected thereby based upon any act or omissions directly authorized, approved, or confirmed in the judgment or order. . . . [¶] (b) This section does not apply where the judgment or order is obtained by fraud or conspiracy or by misrepresentation contained in the petition or account or in the judgment or order as to any material fact. For the purposes of this subdivision, misrepresentation includes, but is not limited to, the omission of a material fact.” Probate Code section 2103 gives res judicata effect to final judgments and orders in conservatorship proceedings absent fraud, conspiracy, or misrepresentation. (Conservatorship of Harvey (1970) 3 Cal.3d 646, 651-652; see Guardianship of Slakmon (1978) 83 Cal.App.3d 224, 231.) Probate Code section 2103, subdivision (b) requires an extrinsic fraud or misrepresentation showing to overcome the res judicata effect of a final judgment or order. (Conservatorship of Coffey (1986) 186 Cal.App.3d 1431, 1437; Bank of America v. Superior Court (1986) 181 Cal.App.3d 705, 711.) There was no extrinsic fraud assertion or alleged omission of material fact in this case. The discharge order is res judicata as to any issues that could have been raised at the time Mr. Oveross resigned and was discharged. (Prob. Code, § 2103, subd. (a); see Goldberg v. Frye (1990) 217 Cal.App.3d 1258, 1263-1266 [administrator of estate discharged]; Vitug v. Griffin (1989) 214 Cal.App.3d 488, 494 [receiver discharged].)
Plaintiff argues he should have been granted leave to amend as to Mr. Oveross “to clarify that the breached acts” were not subject to the discharge order. Plaintiff reasons, “[R]es judicata does not apply where the conservator has committed an error. See [Conservatorship] of Coffey[, supra, ]186 Cal.App.3d 1431 . . . .” The burden is on plaintiff to demonstrate the trial court abused its discretion in sustaining the demurrer without granting him leave to amend; he must show in what manner the pleading can be amended. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 211; Goodman v. Kennedy, supra, 18 Cal.3d at p. 349.) Plaintiff has not shown his first amended complaint can be amended in a manner that will avoid the res judicata effect of the discharge order. Plaintiff has not alleged Mr. Oveross obtained the discharge order by fraud or conspiracy or by misrepresentation as to any material fact. He has not shown that the pleading can be amended so as to avoid the res judicata effect of the discharge order. The trial court did not abuse its discretion by denying leave to amend.
E. Mr. Yoshida
Mr. Yoshida argues the fifth (negligence) and sixth (fiduciary duty breach) causes of action brought by plaintiff on Ernst’s behalf are barred by the one-year statute of limitations in Code of Civil Procedure section 340.6. The specific tolling provisions of Code of Civil Procedure section 340.6 are exclusive. (Laird v. Blacker, supra, 2 Cal.4th at p. 618 [“[T]he Legislature expressly intended to disallow tolling under any circumstances not enumerated in the statute”]; Gordon v. Law Offices of Aguirre & Meyer (1999) 70 Cal.App.4th 972, 980 [“the ‘[i]n no event’ language of section 340.5 makes its enumerated tolling provisions exclusive”].)
Code of Civil Procedure section 340.6 provides in pertinent part: “(a) An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. In no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist: [¶] (1) The plaintiff has not sustained actual injury; [¶] (2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred; [¶] (3) The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation; and [¶] (4) The plaintiff is under a legal or physical disability which restricts the plaintiff's ability to commence legal action.”
Plaintiff alleges Mr. Yoshida represented Ernst from 1998 through approximately August 2003. Adelle’s alleged wrongful acts occurred between 1997 and 2004. According to the allegations of the first amended complaint, Ernst was under a legal or physical disability that restricted his ability to commence legal action from the time he suffered a “massive stroke,” in March 1997, until his death, in November 2004. The first amended complaint alleges Ernst suffered a massive stroke in March 1997, which rendered him “incapable of attending to [his] financial affairs, and severely affected” his ability to take care of himself. Further, plaintiff alleges Ernst was in “poor and incompetent physical and mental condition.” Code of Civil Procedure section 340.6, subdivision (a)(4), specifically provides that the period shall be tolled while “[t]he plaintiff is under a legal or physical disability which restricts the plaintiff’s ability to” file suit. Because Ernst’s incompetency, as alleged, predated the acts of wrongdoing and continued until his death, the statute of limitations on his causes of action was tolled from March 1997 to November 2004. The one-year statute of limitations commenced no later than December 1, 2004, at which time Mr. Yoshida no longer represented Ernst. The first amended complaint, which first named Mr. Yoshida as a defendant, was filed more than a year later, on February 10, 2006.
Plaintiff further alleged: “[Plaintiff] discovered Ernst’s death in or about late December 2005. Such discovery tolls the applicable statutes of limitation as to the within causes of action brought by Ernst.” We disagree. Pursuant to Code of Civil Procedure section 377.20, subdivision (a), “Except as otherwise provided by statute, a cause of action for . . . a person is not lost by reason of the person’s death, but survives subject to the applicable limitations period.” (Italics added.) Moreover, as noted above, the specific tolling provisions of section 340.6 are exclusive. (Laird v. Blacker, supra, 2 Cal.4th at p. 618; Gordon v. Law Offices of Aguirre & Meyer, supra, 70 Cal.App.4th at p. 980.) Plaintiff’s lack of knowledge of Ernst’s death does not fall within any of those tolling provisions. Plaintiff does not contend the facts giving rise to the cause of action were unknown to him or not reasonably discoverable. (See Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 509; Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 179.) Plaintiff has not asserted he can amend the pleading to avoid the statute of limitations. The demurrers to the fifth and sixth causes of action against Mr. Yoshida were properly sustained without leave to amend.
F. Mr. Mims and the firm
The foregoing discussion of the statute of limitations is equally applicable to Mr. Mims and the firm, who allegedly represented Ernst from August 2003 until November 2004. As noted, Ernst died in November 2004. The one-year statute of limitations commenced to run no later than December 1, 2004, at which time Mr. Mims and the firm no longer represented Ernst. (See Smith v. Bear Valley etc. Co. (1945) 26 Cal.2d 590, 601; Swartfager v. Wells (1942) 53 Cal.App.2d 522, 527-528.) The first amended complaint, which first named Mr. Mims and the firm as defendants, was filed more than a year after Ernst’s death, on February 10, 2006. Plaintiff does not assert he can amend the pleading to avoid the statute of limitations. Therefore, the demurrers to the fifth and sixth causes of action as against Mr. Mims and the firm were properly sustained without leave to amend.
IV. DISPOSITION
The judgments of dismissal in favor of defendants, Greg Oveross, Gerald T. Yoshida, Stewart Scott Mims, and Hicks, Mims, Kaplan & Burns, are affirmed. The judgment of dismissal in favor of Tamila C. Jensen is reversed. On remand, the trial court is to enter an order sustaining Ms. Jensen’s demurrer to the first and second causes of action without leave to amend and overruling her demurrer to the third and fourth causes of action. Mr. Oveross, Mr. Yoshida, Mr. Mims, and the firm are to recover their costs on appeal from plaintiff, David Simon. As between plaintiff and Ms. Jensen, the parties are to bear their own costs on appeal.
We concur: ARMSTRONG, J., KRIEGLER, J.