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2nd Civ. No.: B215277Superior Court No.: LP 013345
COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION P
IN THE MATTER OF: ) )
THE TESTAMENTARY TRUST OF ) )
SAMUEL D. BLOWITZ )____________________________________ )
_____________________________________________________________
APPELLANT’S OPENING BRIEF_____________________________________________________________
From an Order Granting Demurrer with Prejudice, and Dismissing the Matter with Prejudice, in the Superior Court for the County of Los Angeles, LASC Case No. LP
013345, Hon. James A. Steele, Judge Presiding________________________________________________________
Alan M. Goldberg (SBN: 136988)LAW OFFICE OF ALAN GOLDBERG, APLC
16000 Ventura Boulevard #500Encino, California 91436
(818) [email protected]
Attorneys for Appellant, Robert (Blowitz) Quick
1. APPELLANT’S OPENING BRIEF
I. STATEMENT OF FACTS
Appellant herein is the Petitioner in the trial court, Robert Quick. The Respondent
herein is the Respondent in the trial court, Andrea Pearson. Mr. Quick filed a Second
Amended Petition for Breach of Trust to which Ms. Pearson filed a Demurrer. The
Demurrer was sustained in the trial court without leave to amend (Clerk’s Transcript
(“CT”) 252). Mr. Quick timely filed his Notice of Appeal. After the Notice of Appeal
was filed by Mr. Quick, Ms. Pearson filed a Motion to Dismiss which was granted by the
trial court (Augmented Clerk’s Transcript (“ACT”) 1, 3.
This case pertains to a breach of trust by the Respondent Andrea Pearson who was
the trustee of the trust which is the subject of this case (CT 186:14). The trust is entitled
THE TESTAMENTARY TRUST OF SAMUEL D. BLOWITZ. Appellant, Robert Quick
is a beneficiary under the subject trust (CT 186:19) and was entitled to a 1/5 share of the
trust disbursements and benefits (CT 186:26).
Appellant was born on 4/18/65, three years prior to the death of the settlor of the
trust, Samuel D. Blowitz (CT 184:5). Samuel Blowitz was the father of J. Michael
Blowitz (“Michael”) who is the biological father of the Appellant herein (CT 184:6, 204).
Respondent herein, Andrea Pearson, is the sister of Michael (CT 184:16) and the aunt of
Appellant (CT 186:14). Appellant’s mother is Marilyn Scott (“Marilyn”) (CT
184:8). Appellant was born into a marriage between Marilyn and Robert Quick
(“Robert”) (CT 184:8). Although Robert Quick is not the biological father of Appellant
he raised Appellant until Appellant was 13 years old when Robert and Marilyn divorced
(CT 184:21).
Respondent and Marilyn were close friends prior to the birth of Appellant (CT
2. APPELLANT’S OPENING BRIEF
184:15). Marilyn married Robert 36 days prior to birth of Appellant (CT 184:8).
Respondent knew that her brother Michael was the biological father of Appellant (CT
204-05) and she was the maid of honor at Marilyn’s wedding (CT 184:15). Respondent
continued to maintain her close friendship with Marilyn for at least 20 years after
Appellant was born (CT 184:19).
Appellant did not know that Michael was his biological father until 1989 when
Appellant was 24 years old (CT 184:24). Appellant was told about his biological father
by Michael’s daughter (Appellant’s half sister) Shannon Lee Blowitz (CT 184:24).
Shortly thereafter Appellant met his biological father, Michael, and began to develop a
relationship with him (CT 184:26).
Appellant had no idea that he was a beneficiary of the trust until he was advised
of the trust by Michael’s son, Mickey Blowitz (“Mickey”), in early 2007 (CT 185:22). At
that time Appellant learned that the trust language conferred the benefits of the trust on
Samuel’s “grandchildren” not on individually named grandchildren (CT 185:22-26).
Upon learning that he may also be a beneficiary of the trust, Appellant began to research
the issue by obtaining a copy of the trust from the court and hiring a lawyer to help him
understand his relationship to the trust (CT 186:7). A copy of the trust (order) is found in
the record at CT 190. Appellant filed his Petition for Relief from Breach of Trust on
1/16/08, about one year after learning of his inheritance and well within the 3 year statute
of limitations (CT 186:11). The subject of this appeal is the Respondent’s Demurrer to
the Second Amended Petition for Relief from Breach of Trust (“SAP”) (CT 213).
The Appellant set forth facts which show that Respondent concealed the facts of
the existence of the trust from Appellant (CT 186:22, 187:2-11), failed to give Appellant
3. APPELLANT’S OPENING BRIEF
notice of the trust (CT 186:22, 187:2-11), failed to include Appellant in the distributions
under the trust (186:26, 187:8), refused to include Appellant in the benefits of transfers of
trust property (CT 186:14-25, 187:2-11), and, instructed the other grandchildren not to
inform Appellant of the existence of the trust (CT 186:1). The above actions on the part
of the Respondent constitute a breach of the trust (CT 187:1-11).
The facts set forth in the SAP show that, due the fraudulent concealment by
Respondent, Appellant was not on inquiry notice about the trust until early 2007, that he
benefits from the delayed discovery doctrine such that this case is not barred by either the
doctrine of Laches or the Statute of Limitations (Probate Code section 16460), and, that
the final judgment rule does not apply in this case.
II. THE STANDARDS ON REVIEW
Regarding the interpretation of the statute of limitations (Probate Code section
16460(a)(2) re breach of trust and CCP 338(d) for fraud), “[I]t is well settled that the
interpretation and application of a statutory scheme to an undisputed set of facts is a
question of law [citation] which is subject to de novo review on appeal." Bodell
Construction Co. v. Trustees of Cal. State University (1998) 62 CA4th 1508, 1515, 73
CR2d 450. Since there are no facts alleged in which Respondent denies that she withheld
information regarding the existence of the trust or Mr. Quick’s right to disbursements
there under, the facts are undisputed.
The sustaining of a demurrer, like a Motion for Judgment on the pleadings, is
reviewed de novo because the Appellate court will have to determine whether the
complaint states a cause of action. Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 85, 91,
111 CR2d 711, Buller v. Sutter Health (2008)160 Cal.App.4th 981, 986 -- Cal.Rptr.3d --.
4. APPELLANT’S OPENING BRIEF
Denial of leave to amend, however, is reviewed by the Appellate court to
determine if the trial judge abused his/her discretion in denying amendment. Buller v.
Sutter Health (2008)160 Cal.App.4th 981, 986 -- Cal.Rptr.3d --, Lovejoy v. AT&T Corp.
(2001) 92 Cal.App.4th 85, 91, 111 CR2d 711.
The issue of laches is reviewed differently depending on the stage of the litigation
in which the trial judge is asked to make a ruling. For example, after a summary
judgment, a finding of laches is reviewed under a de novo standard. Bono v. Clark (2002)
103 Cal.App.4th 1409, 128 CR2d 31. After a trial the issue of laches is reviewed under
substantial evidence standard. Id. With this analysis in mind Appellant contends that the
appropriate standard in this case is the de novo standard because the sustaining of the
demurrer on the issue of laches was based on the trial court’s conclusion that Second
Amended Petition for Breach of Trust (“SAP”) fails to state a cause of action because Mr.
Quick “elected not to undertake any inquiry whatsoever.” (CT 252). Thus, because the
demurrer was sustained for failure to state a cause of action, like the above rule sustaining
a demurrer without leave to amend, it should be reviewed de novo. Buller v. Sutter
Health (2008)160 Cal.App.4th 981, 986 -- Cal.Rptr.3d --, Lovejoy v. AT&T Corp. (2001)
92 Cal.App.4th 85, 91, 111 CR2d 711.
III. A (GENERAL) DEMURRER CHALLENGES ONLY THE LEGAL SUFFICIENCY OF THE COMPLAINT NOT THE TRUTH OF THE FACTUAL ALLEGATIONS; SUFFICIENT FACTS NEED TO BE ALLEGED TO MERELY STATE A CAUSE OF ACTION, NOT PROVE ANY FACTS, THUS, THE TRIAL COURT’S RULING IS ERROR
A general demurrer challenges only the legal sufficiency of the complaint (in our
case, Second Amended Petition (“SAP”)), not the truth or the accuracy of the complaint's
factual allegations or the plaintiff's ability to prove those allegations. Amarel v. Connell
5. APPELLANT’S OPENING BRIEF
(1988) 202 CA3d 137, 140-41, 248 Cal.Rptr. 276. The Appellate Courts will, therefore,
treat as true all of the complaint's material factual allegations, but not contentions,
deductions or conclusions of fact or law. Id. at 141, Blank v. Kirwan (1985) 39 C.3d 311,
318, 216 Cal.Rptr. 718, Buller v. Sutter Health (2008)160 Cal.App.4th 981, 986 --
Cal.Rptr.3d --. In determining whether or not a complaint is sufficient to withstand a
general demurrer, the rule is that a demurrer admits all the material and issuable facts
properly pled, and if it appears that the plaintiff is entitled to any relief against the
defendant, under any theory, the complaint will be held good, even though the facts may
not be clearly stated. Gruenberg v. Aetna Ins. Co. (1973) 9 C.3d 566, 572, 108 Cal.Rptr.
480, Dicon Fiberoptics Inc. v. Franchise Tax Board (2nd Dist., 2009) ___ CA4th ___,
___, ___ CR3d ___ (slip opn. 5-6).
On appeal from a judgment of dismissal following the sustaining of a demurrer
without leave to amend, the reviewing court must accept as true not only those facts
alleged in the complaint but also facts that may be implied or inferred from those
expressly alleged. Marshall v. Gibson, Dunn & Crutcher (2nd Dist., 1995) 37 Cal.App.4th
1397, 1403, 44 CR2d 339. The facts taken into account include “those evidentiary facts
found in recitals of exhibits attached to a complaint.” Satten v. Webb (2002) 99
Cal.App.4th 365, 375. Accordingly, we must analyze the SAP and the exhibits.
IV. SUMMARY OF ARGUMENTS
A general demurrer challenges only the legal sufficiency of the complaint not the
truth of the allegations. Defendant’s demurrer is defective and should be reversed.
Respondent is and was a fiduciary to Appellant, and, Respondent breached her
fiduciary duties by failing to notify Appellant of the trust.
The doctrine of laches does not apply due to concealment by Respondent and lack
6. APPELLANT’S OPENING BRIEF
of inquiry notice on Appellant’s part.
The statute of limitations does not apply for want of inquiry notice.
Appellant satisfied all elements for concealment and delayed discovery.
Respondent’s trial court request for judicial notice is defective.
The dismissal after filing of the Notice of Appeal was improper.
V. THE DEFENDANTS’ DEMURRER IS FRAUGHT WITH DEFECTSREQUIRING IT TO BE OVERRULED AS A MATTER OF LAW
As a preliminary matter, the probate courts exist, in part, to protect the
beneficiaries of the trust. The law in California is that “[t]he power of the court is
invoked in probate matters, at least in substantial measure, to protect the estate and ensure
its assets are properly protected for the beneficiaries. Estate of Ferber (1998) 66
Cal.App.4th 244, 253, 77 CR2d 774. Mr. Quick is a beneficiary under the trust (CT
184:14, Ex. “B,” 185:17, 186:19-22, 187:2-11). Thus, he comes under the protection of
the probate court. The trial court judge, in sustaining the demurrer, committed reversible
error and denied Mr. Quick his right to participate in the trust as a beneficiary.
1. A statement of facts is improper and prejudicial and must not be considered. The trial court should have overruled the demurrer
Defendant (Respondent herein) improperly includes in her demurrer a
“Statement of Relevant Facts.” (CT 217). This is improper and renders the demurrer
subject to reversal on this ground alone because the statement of facts is highly
prejudicial to the plaintiff (Appellant) as it improperly prejudices the mind of the trier of
fact. (Cal. Evid. Code sec. 352). Extraneous provisions of information outside the 4
corners of the complaint are improper. Gould v. Maryland Sound Industries, Inc. (2nd
Dist., 1995) 31 CA4th 1137, 1144, 37 CR2d 718.
7. APPELLANT’S OPENING BRIEF
2. If the Petition can be amended to state a cause of action, leave should have been given by the trial court: it was error to sustain without leave
Appellant avers that his SAP is sufficient to survive a demurrer.
Therefore, the analysis provided in this section is not to be construed as an admission on
the part of the Appellant that he believes that an amendment is needed.
As to the demurrer to all causes of action and each of them, even where it appears
that the defect in a pleading is one of substance, a demurrer should not be sustained
without leave to amend if there is a possibility that a subsequent amendment will supply
the omitted allegations. Colvig v. RKO General, Inc. (1965) 232 CA2d 56, 70, 42 CR
473, 482.
Further, a demurrer should not be sustained if the complaint, liberally construed,
states a cause of action on any theory. Id. at 68, 42 CR at 489.
In the event that this court is inclined to hold that the sustaining of the demurrer to
the SAP was proper, then, Appellant prays that the matter be reversed to allow an
amendment. With the amount of the facts pled in the SAP and the inferences which the
court can draw there from, it is obvious that an amendment is justified.
3. The grounds for a demurrer do not appear in defendants’ papers
At CT 217:23 the defendant correctly states the grounds for a demurrer.
Defendant states “[W]hen any ground for objection to a complaint . . . appears on the
face thereof . . . the objection on that ground may be taken by demurrer to the pleading.”
(Emphasis added).
Respondent, in her demurrer, cites to case law which says:
When a complaint shows on its face that it is barred by the statute of limitations, a demurrer may be sustained and a judgment of dismissal may be entered (citation).
8. APPELLANT’S OPENING BRIEF
(CT 218:1, emphasis added). The SAP in this case does not show that it is barred by the
statute of limitations (or laches) on its face. Therefore, it cannot be decided at the
demurrer stage. TracFone Wireless, Inc. v. County of Los Angeles (2nd Dist., 2008)163
Cal.App.4th 1359 , -- Cal.Rptr.3d --, Amarel v. Connell (1988) 202 CA3d 137, 140, 248
Cal.Rptr. 276. A demurrer based on a statute of limitations will not lie where the action
may be, but is not necessarily, barred. Marshall v. Gibson, Dunn & Crutcher (1995) 37
Cal.App.4th 1397, 1403, 44 Cal.Rptr.2d 339, Moseley v. Abrams (1985) 170 CA3d 355,
359-360, 216 Cal.Rptr. 40. As is shown, Appellant avers that only one conclusion can be
drawn from the facts on the face of this SAP: that Mr. Quick was never put on inquiry
notice. At the very least, there is a dispute on the facts as to inquiry notice and that is
enough to overrule the demurrer. The trial court erred in sustaining the demurrer.
The SAP, on its face, states specifically that the 3 year statute of limitations
accrues on receipt by the beneficiary of an ‘interim or final account or other written
report’ by the trustee that provides ‘sufficient information so that the beneficiary …
reasonably should have inquired into the claim.” (CT 187:21-28). The SAP, on its face,
pleads that Mr. Quick was not on inquiry notice (CT 185.22, 187:2, 186:1, 186:26,
187:12). Thus, the face of the SAP shows that he did not violate the statute of limitations
or laches. As a matter of law there is no failure by Mr. Quick to act within the statutory
period of time. The trial court erred in sustaining the demurrer and erred in not granting
further leave to amend. The trial court should have overruled the demurrer based on the
statements as to lack of inquiry notice.
VI. THE TRUSTEE OF THE TRUST, ANDREA PEARSON, IS AND WAS A FIDUCIARY TO MR. QUICK AND BREACHED HER FIDUCIARY DUTIES BY FAILING TO GIVE NOTICE OF THE TRUST AND DISBURSEMENTS
9. APPELLANT’S OPENING BRIEF
It is settled in California law that the trustee of a trust stands in a fiduciary
capacity to the beneficiaries. The facts show that Ms. Pearson is the trustee of the trust at
issue (CT 186:14) and that Mr. Quick is a beneficiary of that trust (CT 184:14, Ex. “B,”
185:17, 186:19-22, 187:2-11). As such, Ms. Pearson breached her fiduciary duties to Mr.
Quick by failing to give him notice of the existence of the trust to which he is a
beneficiary and for failing to include Mr. Quick in the disbursements from the trust and
for failing to include him in the disbursements of the sale or transfer of properties from
the trust (CT 186:22-187:11). The law is clear as is shown below.
This court has enumerated some of the duties of a trustee of a trust to the
beneficiaries in the case of William R. Hearst II v. Victor F. Ganzi (2nd Dist., 2006) 145
CA4th 1195, 1208, 52 CR3d 473. That case states:
Trustees owe a duty to all trust beneficiaries, and must treat all equally. [Unless the trust instrument itself provides otherwise,] the trustee’s duty to each beneficiary precludes it from favoring one party over another. Thus, a trustee must act impartially with respect to all beneficiaries, doing his or her best for the entire trust as a whole. A trustee who violates his or her duties to deal impartially with all beneficiaries risks exposure to liability for breach of trust.
Id. at 1208 (italics in original). This court continues:
Trustees owe all beneficiaries, including the income beneficiaries herein, a fiduciary duty. A fiduciary relationship is a recognized legal relationship such as trustee and beneficiary, principal and agent, or attorney and client. (Citation). Where a fiduciaryrelationship exists, there is a duty ‘to act with the utmost good faith for the benefit of the other party.’
Id. See also, Probate Code sections 16002 (duty of loyalty), 16003 (duty to deal
impartially with the beneficiaries) and 16060 (duty to report and account).
10. APPELLANT’S OPENING BRIEF
Ms. Pearson breached all of these fiduciary duties: she favored the 4 other
grandchildren over Mr. Quick (CT 185:22, 186:26, 187:12); she showed no duty of
loyalty to Mr. Quick (CT 185:22, 186:1, 186:26, 187:12) and she failed to report or
disburse to Mr. Quick (CT 186:22, 187:1). Even though Respondent knew about Mr.
Quick from the time her good friend, Mr. Quick’s mother, Marilyn, became pregnant (CT
184:15, 186:19), Ms. Pearson did not act with the utmost good faith for the benefit of the
other party, that is, Mr. Quick.
Regarding the duty to report and account, specifically (PC 16060), guidance on
the fiduciary duties is provided by the Law Revision Commission. The analysis of the
Law Revision Commission is set forth in the case of Salter v. Lerner (2009) ___ CA4th
___, ___ CR3d ___. Here, the court quotes portions of the Law Revision Commission’s
comments:
Section 16060 provides: The trustee has a duty to keep the beneficiaries of the trust reasonably informed of the trust and its administration. The Law Revision Commission Comments to section 16060 explain, ‘The trustee is under a duty to communicate to the beneficiary information that is reasonably necessary to enable the beneficiary to enforce the beneficiary’s rights under the trust or prevent or redress a breach of trust.’ This duty is ‘consistent with the duty stated in prior California case law to give beneficiaries complete and accurate information relative to the administration of a trust when requested at reasonable times.’
Slip Opinion at page 3. Ms. Pearson failed to follow this rule. In fact, Ms. Pearson
affirmatively instructed other beneficiaries not to give information about the trust to Mr.
Quick (CT 186:1). Further, the duty imposed under section 16060 is not subject to waiver
under section 16064. Id. Thus, even if no request is made by a beneficiary under PC
16061 or 16062, the trustee is still obligated to provide trust information to all
11. APPELLANT’S OPENING BRIEF
beneficiaries equally and for their benefit. Id. at 3-4. This is because the duty to report
under PC 16060 “is independent of, and potentially even broader than, the duty to report
under . . . section 16061 or to account under . . . section 16062”. Id. at 4.
Another important breach of the duty of loyalty by Ms. Pearson is that there is no
evidence that she purchased missing beneficiary insurance to cover a beneficiary in the
event facts such as this arose. Considering that she knew of Mr. Quick since his
conception (CT 184:15, 186:19), the failure of Ms. Pearson to purchase the missing
beneficiary insurance is also a breach against Mr. Quick as well as the other beneficiaries.
Purchasing such insurance would have made this case an entirely different matter:
insurance would have been available to make Mr. Quick whole. By not purchasing
missing beneficiary insurance Ms. Pearson failed to act for the best interests of Mr. Quick
(and the other beneficiaries).
VII. THE DOCTRINE OF LACHES DOES NOT APPLY IN THIS CASE FOR SEVERAL REASONS, FOR EXAMPLE, DUE TO THE CONCEALMENT OF FACTS BY MS. PEARSON AND OTHER REASONS SET FORTH BELOW
The doctrine of laches is a defense which is applied only when a plaintiff has slept
on his rights. In re Marriage of Plescia (1997) 59 Cal.App.4th 252, 256, 69 CR2d 120. In
order for a person to “sleep on his rights” he or she must first know about those rights. In
order for the trial court to apply the doctrine of laches it must find 2 elements:
unreasonable delay and prejudice. Id., In re Marriage of Dancy (Black) (2000) 81 CA4th
1142, 1148, 98 CR2d 775. The rule is that “[l]aches may bar relief in equity to those who
neglect their rights, where such neglect operates to the detriment of others.” Bono v.
Clark (2002) 103 Cal.App.4th 1409, 1417, 128 CR2d 31 (emphasis added). The
important word in the application of the elements of laches in California is “neglected.”
12. APPELLANT’S OPENING BRIEF
The plaintiff would have to be culpable in some way, meaning that he would have to
have inquiry notice and fail to act on that notice. If the plaintiff has no inquiry notice,
then he cannot “neglect” his rights.
Whether or not the doctrine applies depends upon the circumstances of each
case.” Id. at 1418. As is shown throughout this brief the conduct of the respondent was
egregious in concealing information about the trust from Mr. Quick. If any case is
immune to a laches defense it is this case.
The doctrine of laches “is not technical and arbitrary and is not designed to punish
a plaintiff. It can only be invoked where a refusal would be to permit an unwarranted
injustice.” Id. at 1418. As is shown below there is no injustice or prejudice to the other
beneficiaries or Ms. Pearson: they never had a right to ¼ of the trust benefits, only 1/5.
The only person who suffered an injustice in the trial court is Mr. Quick.
Concealment by Ms. Pearson will toll the application of laches because
concealment on the part of the defendant makes any delay in asserting Mr. Quick’s rights
reasonable. In re Marriage of Modnick (1983) 33 C.3d 897, 908-10, 191 CR 629 (a case
in which the husband concealed assets of the estate which caused a delay in wife’s action,
court found laches did not apply).
California courts have long recognized the there are limits in the application of
laches as a defense. Laches is not strictly applied in cases between near relatives. Bono v.
Clark (2002) 103 Cal.App.4th 1409, 1418, 128 CR2d 31. Our case is a case between near
relatives. Mr. Quick is the son of Michael Blowitz as is at least two other grandchildren
beneficiaries: Mickey Blowitz (CT 185:22) and Shannon Lee Blowitz (CT 184:24). Mr.
Quick is the nephew of the respondent herein, as are other grandchildren beneficiaries
13. APPELLANT’S OPENING BRIEF
(CT 184:15-16).
The Bono court held that “[p]rejudice is never presumed; rather it must be
affirmatively demonstrated by the defendant in order to sustain his burdens of proof and
the production of evidence on the issue.” Bono v. Clark (2002) 103 Cal.App.4th 1409,
1420, 128 CR2d 31. In fact, in our case there can be no prejudice. The respondent admits
to 4 grandchildren (CT 217:17). However, the facts show that there are 5 grandchildren
counting Mr. Quick because Mr. Quick is a beneficiary (CT 184:14, Ex. “B,” 185:17,
186:19-22, 187:2-11). Thus, the grandchildren beneficiaries were not entitled to ¼ of the
trust. They were entitled, from the beginning, to 1/5. Ms. Pearson knew this. She
concealed the facts. Other beneficiaries knew about Mr. Quick (186:1-4). Thus, they
never expected a ¼ share. They knew that if their luck held out and Mr. Quick never
found out about the trust, they could “get away” with ¼ instead of 1/5. Thus, there can be
no prejudice because they had no rights to the extra portion at any time. Even if some of
the grandchildren beneficiaries did not know of Mr. Quick, Ms. Pearson did (CT 184:15)
and she failed to disclose that which she is obligated to disclose.
Therefore, laches should not apply in this case for 3 reasons: first, the delay in
discovery by Mr. Quick of the facts of the trust and his entitlement to its disbursements
was not unreasonable; second, there is no prejudice to the other family members as they
were not entitled to Mr. Quick’s portion; and, third, they are all near relatives. The trial
court erred to the extent that it relied upon the doctrine of laches in sustaining the
demurrer. The demurrer to the SAP should have been overruled and the case should have
continued in the trial court.
///
14. APPELLANT’S OPENING BRIEF
VIII. NEITHER THE STATUE OF LIMITATIONS NOR LACHES WERE SUFFICIENT GROUNDS TO SUSTAIN THE DEMURRER AS A MATTER OF LAW BECAUSE THERE IS NO EVIDENCE THAT MR. QUICK WAS ON INQUIRY NOTICE AND THIS QUESTION CANNOT BE RESOLVED AT THE DEMURRER STAGE OF THE LITIGATION
The analysis regarding laches is hereby incorporated herein as though
fully set forth.
As a preliminary matter, a “demurrer based on a statute of limitations will not lie
where the action may be, but is not necessarily, barred.” Marshall v. Gibson, Dunn &
Crutcher (2nd Dist., 1995) 37 Cal.App.4th 1397, 1403, 44 CR2d 339.
1. The statute of limitations is tolled until there is inquiry notice
The law in California is that the statute of limitations is tolled
until, and unless, the plaintiff has knowledge of facts sufficient to put him or her on
notice to inquire about the cause of action. California law is long clear on the concept of
inquiry notice. The Second Appellate District in the case of Vega v. Jones, Day, Reavis
& Pogue (2nd Dist., 2004) 121 CA4th 282, ___ CR3d ___ states:
Where no duty is imposed by law upon a person to make inquiry, and where under the circumstances ‘a prudent man’ would not be put upon inquiry, the mere fact that means of knowledge are open to a plaintiff, and he has not availed himself of them, does not debar him from relief when thereafter he shall make actual discovery. The circumstances must be such that the inquiry becomes a duty, and the failure to make it a negligent omission.
Id. at 298, fn. 15. The rule is clear: the statute of limitations commences to run “only after
one has knowledge of facts sufficient to make a reasonably prudent person suspicious of
fraud [or the knowledge of the trust], thus putting him on inquiry.” Id. “The means of
knowledge are equivalent to knowledge ‘only where there is a duty to inquire, as where
plaintiff is aware of facts which would make a reasonably prudent person suspicious.’”
15. APPELLANT’S OPENING BRIEF
Id.
As applied to our case, the trial court could not say, as a matter of law, that Mr.
Quick had knowledge of a scintilla of evidence that he was on inquiry notice of the
concealment by Respondent, the existence of the trust, the disbursements or the $7
million transaction prior to 2007. No such evidence was produced in the trial court and
the record on appeal is equally silent. The trial court based its sustaining of the demurrer
on mere allegations and presumptions. (CT at 219:17-221:15). The trial court’s ruling
must be reversed and remanded.
The trial court’s minute order states that the basis of its ruling was because the
petition specifically states that Petitioner
elected not to undertake any inquiry whatsoever. For these reasons and all those previously placed on the record, the court sustains the Demurrer without leave to amend.
(CT 252, emphasis added). First, the SAP does not state nor imply the italicized
language, only the Demurrer makes this unsupported statement (discussed in detail
below). It is clear that the trial court applied an incorrect duty of inquiry on Mr. Quick.
Mr. Quick cannot elect to do anything until he has some basis upon which to act. Neither
the statutes cited herein nor the case law speak of an election: the cases and statutes speak
of a duty upon the learning of some fact to put him on notice to inquire.
2. The very language of the statute of limitations applicable to our case supports the above analysis
Subdivision (a)(2) of section 16460 of the Probate Code provides:
If an interim or final account in writing or other written report does not adequately disclose the existence of a claim against the trustee for breach of trust or if a beneficiary does not receive any written account or report, the claim is barred as to that beneficiary unless a proceeding to assert the claim is commenced within three years
16. APPELLANT’S OPENING BRIEF
after the beneficiary discovered, or reasonably should have discovered, the subject of the claim." (Emphasis added).
This code section does not say “could have discovered” it says “should have discovered”
which makes a difference on the duty of inquiry. A duty under a “should have” burden
means that the plaintiff had knowledge of some fact which would put him on inquiry
notice. A duty under a “could have” burden implies that the plaintiff had to start “sniffing
around” and investigating just in case there might be something out there which would
put him on inquiry notice. The Respondent’s demurrer attempts to impose a “could have”
duty on Mr. Quick (CT 218:24-219:6).
To support her position Respondent cites to the case of Grisham v. Philip Morris
USA, Inc. (2007) 40 C.4th 623, 54 CR3d 735. However, Grisham is inapposite as relied
upon by Respondent.
Grisham is one of the law suits against the tobacco companies for claims of health
effects of long term cigarette smoking. In that case plaintiffs alleged 2 types of claims
“one for physical injury in the form of respiratory and other ailments caused by smoking,
and another for economic injury that resulted from becoming addicted as a minor to
cigarettes, and continually being compelled by the addiction to purchase them” (under
theories of unfair competition). Id. at 628. The court concluded that Ms. Grisham admits
in her complaint that she knew that she was addicted, thus, her claim for damages for the
addiction was time barred. Id. at 628-29. Note, that the language relied on by the
Respondent in Grisham has nothing to do with concealment, it pertains to affirmative
misrepresentations regarding false advertising. Id. at 638. Thus, Grisham does not apply
in our case.
The section of analysis by the California Supreme Court from which the
17. APPELLANT’S OPENING BRIEF
Respondent takes the quote on page CT 219:1-3 pertains to whether Ms. Grisham
benefits from the delayed discovery rule for her addiction.
The Grisham court states:
[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.]
Id. The court found that Ms. Grisham admitted in her complaint that she knew she was
addicted to cigarettes as far back as 1993. Id. Thus, the court found that she would not be
able to benefit from the delayed discovery rule because she should have made the
discovery earlier. Id.
Therefore, the context in which Respondent, Ms. Pearson, presents the quote at
CT 219:1-3 pertains to a person who already has knowledge of facts sufficient to put her
on inquiry notice and cannot meet the second prong of the pleading requirements in
Grisham. The Grisham court goes on to say that “if a plaintiff's cause of action depends
upon delayed discovery of his or her addiction to tobacco in order to be timely, he or she
must plead facts showing an inability to have discovered that addiction, such as
reasonable reliance on tobacco company misrepresentations.” Id. (Emphasis added.)
Our case is distinguishable. There are no misrepresentations in our case. Thus,
there could not be, as a matter of law, any fact or knowledge putting Mr. Quick on
inquiry notice. In our case the Respondent, Andrea Pearson, concealed the facts. In the
Grisham case, Ms. Grisham had inquiry knowledge since 1993 (Id.). In our case, Mr.
Quick never had inquiry knowledge, so, there are no facts upon which he should have
been diligent. Thus, the quoted passage by Respondent at CT 219:1-3 is not only wrong,
18. APPELLANT’S OPENING BRIEF
it is misleading.
The second reference to Grisham by Respondent refers to the “face of complaint
(sic).” (CT 219:5). This has been evaluated above: the face of the complaint (SAP) in our
case pleads that Mr. Quick never had any facts to put him on notice. A complaint on its
face which pleads misrepresentation is completely different from one which pleads
concealment. The distinction is analyzed more fully below.
Another example of the Respondent attempting to hold Mr. Quick to a “could
have” standard is found at CT 219:7-14 with CT 219:17-18. Here, again, the Respondent
is arguing that Mr. Quick did not present facts which showed “that he was prevented
from discovering his claims earlier[.]” (CT 219:7-14 ). This statement is false. The SAP
states specifically that Ms. Pearson failed to give Mr. Quick notice (CT 186:22) and
instructed the other beneficiaries not to tell about his entitlement to the benefit of the trust
(CT 186:1-4).
Respondent also claims that “Petitioner’s failure to seek out information to
discover the details of the Trust in a timely fashion is fatal to his claim.” (CT 219:17-20,
emphasis added). This is a baseless allegation and has no support in law. Respondent
keeps missing the point that Mr. Quick had no reason to suspect that he was the
beneficiary to the trust because that information was concealed from him. Regarding
demurrers, it has been held that “a Plaintiff need not plead facts with specificity where
the facts are within the knowledge and control of the defendant and are unknown to
plaintiff.” Credit Managers Association of Southern California v. Superior Court (2nd
Dis., 1975) 51 Cal.App.3d 352, 361. In our case Ms. Pearson had the knowledge and Mr.
Quick did not. Thus, how would he know to seek out anything and how would he know
19. APPELLANT’S OPENING BRIEF
what was he supposed to seek out? Further, any argument by the Respondent that the
trust information was public record and Mr. Quick should have availed himself to those
records is equally fallacious and contrary to California law. Vega v. Jones, Day, Reavis &
Pogue (2nd Dist., 2004) 121 CA4th 282, 295, ___ CR3d ___ (“The mere fact that
information exists somewhere in the public domain is by no means conclusive[,]” citing
to Seeger v. Odell (1941) 18 Cal.2d 409, 414-415 (a plaintiff is not barred by constructive
notice of a public record which would reveal the true facts).
Respondent also attempts to hold Mr. Quick to a “could have” standard at CT
219:22 regarding the fact that he discovered his biological father in 1989. Respondent
that states “Petitioner had the opportunity to obtain the necessary information about the
trust (within the statute of limitations period) but simply chose not to do so.” (Emphasis
added). The question is not whether Mr. Quick “could have” obtained the information,
but, whether he “should have” based upon some fact which would have put him on
inquiry notice. The Respondent does not provide the fact which she claims put him on
inquiry notice. She just says that Mr. Quick could have asked. The Respondent has
argued the wrong duty and the trial court agreed. Further, there is no case or statute which
states that merely having a relationship with someone triggers a duty of inquiry. Thus, the
court’s ruling was reversible error and this case should be reversed and remanded.
The analysis at CT 219:22, above, is not the law and there is no such duty on the
Appellant, Mr. Quick. His duty only ripens when he has some fact which puts him on
inquiry notice.
The same analysis applies to the next attempt to impose a “could have” standard
at CT 220:18-25. Again there are no facts, just allegations. Respondent states that Ms.
20. APPELLANT’S OPENING BRIEF
Pearson’s failure to give notice “does not obviate Petitioner’s duty to inquire … when he
became aware of facts which would put a reasonable person on notice.” (Emphasis
added.) However, Respondent does not point to one fact which supports this allegation.
That is because there are no such facts. Ms. Pearson concealed the facts from Mr. Quick.
There was no inquiry notice.
The minute order showing the ruling on the demurrer reflects the same faulty
reasoning. The analysis in the minute order pertaining to “all those previously placed on
the record” (CT 252), shows that the trial court adopted the defendant’s analysis in her
demurrer. This is reversible error.
3. The analysis in the defendant’s demurrer is not only incorrect it is deceptive
The Respondent deceived the trial court in her papers. Consider, for
example, defendant’s language at CT 219:9. Here the important observation is the
Respondent’s placement of the quotation marks and her failure to quote the cited to
section of the SAP fully (“selective quoting”). Defendant purports to be quoting
Petitioner’s SAP. The defendant admits as such as 219:7 where she opens the paragraph
with the words “In the Second Amended Petition . . ..” She then ostensibly quotes
portions of the SAP. One example of deceptive quoting is found at CT 219:9:
Petitioner was ‘an adult providing for himself’ and chose not ‘to inquire as to the financial matters of his father or his grandfather.’ (Emphasis added).
The italicized words are the entire basis of the defendant’s argument on demurrer, and,
the basis of the court’s minute order (CT 252), and those words are not in quotes. That is
because those words do not appear anywhere in the SAP. The SAP actually states:
Petitioner was an adult providing for himself and valued the personal father-son relationship . . . and had no reason to inquire
21. APPELLANT’S OPENING BRIEF
as to the financial matters . . ..
(CT 185:4-7, emphasis added). Respondent left out the italicized words. This is deceptive
quoting. The SAP language, as properly quoted, is consistent with California law.
Respondent, by replacing the correct words in the SAP with “and chose not [to inquire]”
misled the court by implying that Mr. Quick had information upon which to inquire. The
Petitioner’s language in the SAP states that he had no reason to inquire because he had no
facts upon which to base his inquiry as all the discussions between father and son were
about personal matters (CT 185:7-8). Petitioner’s statement is consistent with California
law and Respondent’s statement has no basis in California law. The trial court erred in
relying on this language to sustain the demurrer and that ruling is reversible error.
Another deceptive contention by the Respondent in her demurrer is found at CT
218:24-28. Here the Respondent contends that the SAP makes “bald assertions.”
Respondent’s statement is false and not supported by the pleadings. Respondent attempts
to make the impression that the Appellant’s SAP is contains bald assertions. The only
way such an impression can be made is through the use of deceptive quoting from the
SAP. Respondent again only quotes a part of the relevant passages. Respondent states, in
her Demurrer (CT 218:24-28) as follows:
Petitioner asserts that ‘in light of the circumstances surrounding Petitioner’s discovery’ of the relevant facts, he ‘could not have reasonable discovered’ the subject of his claim any earlier than 2007 . . ..
(Italics added). The actual language by Appellant in his SAP is:
[in] light of the circumstances surrounding Petitioner’s discovery of his natural father and Respondent’s continued efforts to conceal from Petitioner information to permit him to discover his beneficial interest in the trust, Petitioner could not have reasonably discovered the subject of this claim . . ..
22. APPELLANT’S OPENING BRIEF
(CT 188:5-10) (Italics added). This italicized portion of the quote from the Demurrer (CT
218:24-25) (“of the relevant facts”) substitutes for the italicized words in the SAP (CT
188:6-9). The italicized language from the SAP is omitted from the Respondent’s “quote”
in her Demurrer (CT 218:24-28). The omitted language is filled in (improvised) by
respondent in her Demurrer. This is a deceptive and misleading “quote.”
Stopping the quote where she did at “discovery,” and then improvising, she
misleads the reader. The substitution of the italicized language from the SAP is most
important because Respondent is deceitfully attempting to show that the paragraph in the
SAP is not consistent with California law. The italicized words from the SAP show
specifically that Mr. Quick could not have been on inquiry notice due to the concealment
of facts by the Respondent. Respondent left this out of her “quote.” Respondent’s claim
that this paragraph is nothing more than “bald assertions” is false and misleading.
Respondent’s analysis in section “B” of her demurrer at CT 218:15 is also without
merit. Here the Respondent states
where no fraud is proven, ‘section 16460 impose[s] on the plaintiff a duty of inquiry when sufficient information was received by [him] to put [him] on notice of action (emphasis added).
(CT 218:15-17). Again, Respondent does not point to one fact which would have put Mr.
Quick on inquiry notice. The obvious question is: how can fraud (concealment) be proved
if the litigation is only at the demurrer stage? No discovery has been done and
Respondent had not even answered the complaint. Thus, nothing can be “proven” at this
stage. Further, Respondent is setting forth the wrong burden. The only analysis on
demurrer is whether sufficient facts are stated to state a claim, not prove an issue.
The answer to the above question is that concealment cannot be proved at the
23. APPELLANT’S OPENING BRIEF
demurrer stage, but it can, as here, be pled. The authority cited by Respondent for her
position is also misleading. The Respondent cites to the case of Noggle v. Bank of
America (2nd Dist., 1999) 70 CA4th 853, 860 for the above proposition. However, for the
reasons relied upon by Respondent, Noggle is completely distinguishable from our case.
First, Noggle is not a case regarding a demurrer. In fact, the word “demurrer” does not
even appear in the case. The appeal in Noggle takes place after a Motion for Summary
Adjudication. Id. at 856. This means that the parties had some time to conduct discovery
in order to “prove” their allegations. No such opportunity for discovery existed in our
case. Again, Respondent misleads the court to make her point and the trial court adopted
the analysis. This is reversible error.
Respondent also misrepresents the case of Lazzarone v. Bank of America (1986)
181 CA3d 581, 226 CR 355 (CT 243:13, defendant’s Reply Brief). Defendant cites to
Lazzarone for the proposition that if Mr. Quick is alleging fraudulent concealment then
that claim must be “pled with particularity.” (CT 243:13). Respondent cites to Lazzarone
for the following quote: “Facts constituting fraud must be pled with particularity.” (CT
243:13). Respondent again deceived the trial court by quoting this line but not the line
immediately following the cited line which states that “[t]his rule is not always applied
with rigor . . ..” Id. at 598 (CT 243:13). Appellant avers that he has satisfied the pleading
requirements for concealment. But, if this court concludes that Mr. Quick did not plead
with particularity, his case comes under one of the exceptions where the rule is not
applied with rigor.
One of the exceptions which applies to our case is the inability to plead with
particularity because the facts are known only to the Respondent. The case of Committee
24. APPELLANT’S OPENING BRIEF
on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 197
Cal.Rptr. 783 makes the point:
We observe, however, certain exceptions which mitigate the rigor of the rule requiring specific pleading of fraud. Less specificity is required when "it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy," (citation); ‘[e]ven under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party ....’ (citation).
Id. at 217. See also, Credit Managers Association of Southern California v. Superior
Court, 51 Cal.App.3d 352, 361 (1975) (regarding demurrers specifically). Our case is
about the fact that Ms. Pearson, Respondent herein, had the knowledge but concealed
from Mr. Quick the facts regarding the existence of the trust, that Mr. Quick is a
beneficiary there under and the facts of the disbursements (CT 186:22-187:11).
Respondent does not inform the trial court in her Reply Brief that there are
exceptions to the “pleading with particularity” rule. She presents the quoted language as
though that is the rule, without exception. This is misleading by Respondent.
As discussed more fully below, the pleading of affirmative fraud is different from
pleading concealment. Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 85, 95-96, 111
CR2d 711. While both are fraud, the elements of proof for concealment are different, and
not as rigorous, because of the concealed facts. Id. at 96, 97. The rationale is that
affirmative fraud requires a false statement while concealment requires the non-
expression of a statement when there was a duty to speak. In our case the Respondent had
a duty to speak because she is a fiduciary to Mr. Quick as trustee of the trust. She
breached that duty by concealing the facts from Mr. Quick. The elements of
fraud based on concealment are set forth and analyzed below.
25. APPELLANT’S OPENING BRIEF
The fact that the Respondent had to mislead the trial court in the above examples
to prevail on her demurrer is an admission that her demurrer has no merit without the
deception. Not only should the trial court have overruled the demurrer, the trial judge
should have imposed sanctions on the Respondent and reported the attorneys to the State
Bar.
Lazzarone actually supports the Appellant. It states:
A second species of extrinsic fraud has also been found where fiduciaries have concealed information they have a duty to disclose. [Citations.] This variety of extrinsic fraud recognizes that, even if a potential objector is not kept away from the courthouse, the objector cannot be expected to object to matters not known because of concealment of information by a fiduciary.
Id. at 596-97. In Lazzarone the plaintiff lost the case because he did not
present any facts or allegations showing that the bank prevented him from having his day
in court. The case states:
Here, plaintiff's complaint nowhere alleges any conduct by Bank which prevented him from having his day in court to challenge the propriety of Bank's investments
Id. at 596. Our case is distinguishable because Mr. Quick does, in his SAP, present facts
which show that Respondent did prevent him from benefiting from the trust and having
his day in court. He states specifically that:
he was not informed about the trust until 2007 (CT 185.22);
Respondent had a duty to disclose the trust and include him in the disbursements (CT 187:2);
Respondent herein concealed the existence of the trust from him (CT 186:1, 186:26, 187:2); and,
Respondent willfully failed to distribute Mr. Quick’s 1/5 share (CT 186:26, 187:12).
26. APPELLANT’S OPENING BRIEF
Further, the court itself, in Lazzarone, expressly distinguishes the Lazzarone case from
cases like ours. Id. at 597-98. In Lazzarone the plaintiff relied upon a family law case
entitled In re Marriage of Brennan (2nd Dist., 1981) 124 CA3d 598, 177 CR 520 (which
supports Appellant in our case) wherein the husband did not disclose to the wife
substantial portions of the marital estate, that is, he concealed the assets from her. The
Lazzarone court distinguishes the Lazzarone case from Brennan because in Lazzarone
the defendant bank did provide documents to the plaintiff which put her on inquiry
notice. Our case is like Brennan because in our case Ms. Pearson concealed information
from Mr. Quick as did the husband in Brennan.
The same analysis applies to all the cases which are cited in section “B” of the
Reply beginning at CT 243:8. The entire analysis by Respondent beginning at CT 243:17
makes no sense. Respondent is attempting to hold Mr. Quick to provide “specific
allegations as to how, when, where, to whom and what was allegedly said by Ms.
Pearson.” (CT 243:22-23). This is an obvious “red herring” and impossible burden
because there were no statements by Respondent. She concealed the facts. Such a burden
is not supported in a concealment case by any authority by the Respondent. Since Ms.
Pearson concealed the information there are no facts as to what was said because nothing
was said. It was concealed.
Respondent also claims that “Petitioner had the ability to discover the facts as
early as 1989 from other sources, namely, his own alleged natural father, who was also a
co-trustee of the trust.” (CT 243:25-26). Yet, Respondent points to no facts which were
divulged by his natural father which would have put Mr. Quick on inquiry notice. There
are no cases which hold that merely having a relationship with someone is sufficient to
27. APPELLANT’S OPENING BRIEF
put a person on inquiry notice. The same exception, as discussed above in the Laches
section of this brief, that when the concealment is between close family relatives the
burden on the plaintiff is even less, should also be applied here under a statute of
limitations analysis.
Respondent cites to Miller v. Bechtel Corp. (1983) 33 C.3d 868 for the above
proposition that Mr. Quick had the ability to discover the facts as early as 1989. (CT
243:28). Miller was a case on a Motion for Summary Judgment (that is, after the
opportunity for discovery) which makes it distinguishable from our case. In Miller the
subject of the suit was the value of certain stock. Plaintiff (wife) alleged that she was not
told the true value of certain stock when she agreed to allow the husband to buy her out
as part of a Marital Settlement Agreement. Again, Ms. Pearson only presents a part of the
analysis and misleads the court. In Miller the facts show that the plaintiff wife was on
inquiry notice because: 1. the plaintiff therein sought the advice of a stock broker (Id. at
872) and 2. the plaintiff therein consulted with at least 2 attorneys on the issue. Id. at 872-
73. In other words, the plaintiff in Miller was put on inquiry notice and sought advice on
the subject. While there was fraud in the Miller case because the husband allegedly lied
to the wife about the actual value of the stock, the husband did disclose the stock and the
method of valuation. In our case Ms. Pearson concealed everything from Mr. Quick.
There is not one single fact pointed to in any of Respondent’s papers which supports a
conclusion that Mr. Quick was ever on inquiry notice. Respondent makes only allegations
but points to no facts.
In Miller the court recognized that Ms. Miller was told that the stock would be
valued according to the shareholder’s agreement. Id. at 874. The court also notes that she
28. APPELLANT’S OPENING BRIEF
did make inquiries but did not inquire about the actual method for valuation. Id. In other
words, she did not inquire enough. Such is not our case. Mr. Quick had no fact upon
which to inquire because he was ignorant of all the facts: the concealment, the existence
of the trust, the distributions and the transfer of assets.
4. The concealment by Ms. Pearson results in a non-final judgment
The above analysis vitiates the Respondent’s claim that the
final distribution order is final (CT 244:13). Despite that the Respondent correctly states
the law: “a court order for a preliminary distribution, once final and in the absence of
fraud, is conclusive” (emphasis added) (CT 244:13 under the doctrine of laches), she
proceeds in the analysis as though there was no fraud. This is misleading. Respondent
undermines her own argument because the court order is not final due to the fraud as she
states expressly (CT 244:13). As has been stated and long confirmed under California
law, concealment is fraud. Lazzarone, 181 CA3d at 596-97, Lovejoy, 92 Cal.App.4th 97.
Fraud, in the form of concealment, is pled throughout the SAP (CT 186:1, 22, 187:1-11,
188:7-11).
Appellant’s analysis here also vitiates the Respondent’s argument that
“[h]ere, there are no allegations of fraud . . ..” (CT 222:9). The SAP clearly pleads fraud
in the form of concealment (CT 186:1, 22, 187:1-11, 188:7-11)). This is another
misrepresentation by the Respondent.
5. This controversy cannot be disposed of at the demurrer stage
The determination of whether the Appellant was on inquiry notice cannot
be decided on demurrer. Vega v. Jones, Day, Reavis & Pogue (2nd Dist., 2004) 121
CA4th 282, 298, ___ CR3d ___. Questions of fact may be resolved on demurrer only
29. APPELLANT’S OPENING BRIEF
when there is only one legitimate inference to be drawn from the allegations of the
complaint. Saliter v. Pierce Brothers Mortuaries (2nd Dist., 1978) 81 CA3d 292, 300 (a
case pertaining to delayed discovery in which the court holds that if the facts can raise
more than one inference it may not be decided as a matter of law). There is no question
that Mr. Quick pleads that he was not put on inquiry notice (CT 185:6). This raises a
strong inference from the facts and the matter cannot be decided as a matter of law. The
trial court decided this case as a matter of law (CT 252) and that was reversible error.
Similarly, the question of whether Mr. Quick’s reliance on the concealment was
reasonable cannot be decided on demurrer. The California Supreme court in Grisham v.
Philip Morris USA, Inc. (2007) 40 C.4th 623, 54 CR3d 735 states: "[W]hether reliance [on
affirmative fraud or concealment] was reasonable is a question of fact for the jury, and
may be decided as a matter of law only if the facts permit reasonable minds to come to
just one conclusion." (Italics in original.) As stated, Mr. Quick pled that he was not in
inquiry notice (CT 185:6) because the facts were concealed from him by Respondent (CT
186:1, 26, 187:2). Respondent argues that he was on inquiry notice (no facts are shown).
Thus, reasonable minds cannot come to only one conclusion (though, Mr. Quick avers
that if there is only one conclusion which can be drawn it is that he was not on inquiry
notice because of the concealment and because the Respondent has not pointed to one
fact showing inquiry notice). Whether this was reasonable is not properly decided on
demurrer. Thus, the trial court’s ruling is reversible error.
This court in Vega is clear that questions regarding inquiry notice and the statute
of limitations cannot be resolved at the demurrer stage of the litigation. This court states:
Whether other circumstances exist which, inconjunction with knowledge of the existence of the financing
30. APPELLANT’S OPENING BRIEF
transaction, would have made a prudent person suspicious is a question that cannot be resolved on demurrer.
Therefore, as a matter of law, the trial court committed reversible error in sustaining the
demurrer. It committed further error by denying leave to amend. This case should be
reversed and remanded.
6. The facts show clearly that Mr. Quick exercised his rights and filed suit within the statutory period, thus, he did not sleep on his rights, the statute of limitations was tolled and the trial court erred in granting the demurrer
The facts show that Mr. Quick was first made aware of the existence of
the trust in early 2007 (CT 185:22). He then obtained a copy of the trust from the court
(CT 186:8). He obtained counsel in 8/07 (CT 186:10). He filed his Petition for Breach of
Trust on 1/16/08, only one year after he was put on inquiry notice and well within the 3
year statutes of limitation. Taking these facts as true, which this court must do, Mr. Quick
filed his Petition for Breach of Trust timely. He did not run afoul of the statute of
limitations and he did not sleep on his rights.
The facts of this case show that Mr. Quick found out that he has a biological
father in 1989 (CT 184:24). He was fortunate enough to be able to begin a relationship
with this man. Respondent, Ms. Pearson, who is also his aunt, has not pointed to one
piece of evidence which shows that Mr. Quick was ever put on inquiry notice regarding
the existence of the family trust or his right to a share therein. In fact, the Second
Amended Petition (“SAP”) states specifically that plaintiff and his father did not discuss
financial matters (CT 185:4-8). Thus, the trial court should have overruled the demurrer
as a matter of law.
The grounds upon which the court sustained the demurrer constitute reversible
error. The court placed the duty on Mr. Quick to investigate without finding that he had
31. APPELLANT’S OPENING BRIEF
knowledge that there was anything to investigate. Thus, the trial court improperly and
erroneously placed upon the plaintiff a burden to which he is not subject by statute or
case law.
The law regarding inquiry notice is well settled in California and this case falls
squarely within its protections. Only facts which put the plaintiff on notice and cause a
duty to inquire are sufficient to begin the running of the statute of limitations. Without
such inquiry notice the statute is not triggered. There is no evidence of actual knowledge
by Mr. Quick of facts to charge him with inquiry notice of the existence of the trust or his
right to a portion thereof. Nor is there any evidence of presumptive knowledge sufficient
to put him on notice prior to the disclosure by Mickey Blowitz that he is a beneficiary
under the trust.
IX. FRAUDULENT CONCEALMENT BY MS. PEARSON ENSURED THAT MR. QUICK WOULD NOT RECEIVE INQUIRY NOTICE AND THIS IS ENOUGH TO TOLL THE STATUTE OF LIMITATIONS FOR CONCEALMENT AND LACHES: THERE IS NO TIME LIMIT ON REASONABLENESS
Fraudulent concealment by the defendant (Ms. Pearson) of a cause of action tolls
the relevant statute of limitations, which does not begin to run until the aggrieved party
discovers the existence of the cause of action. Pashley v. Pacific Elec. Ry. Co. (1944) 25
C.2d 226, 229, 153 P.2d 325. See also, Snapp & Associates Insurance Services, Inc. v.
Malcom Bruce Burlingame Robertson (2002) 96 CA4th 884, 890, 117 CR2d 331.
Therefore, “commencement of the running of the statute might be deferred indefinitely.”
Brown v. Bleiberg (1982) 32 C.3d 426, 432. The rationale for this rule is that such a
defendant should be estopped from taking advantage of her own wrong by asserting the
statute of limitations. Sears v. Rule (1945) 27 C.2d 131, 147, 163 P.2d 443.
In fact, this court should be outraged by the concealment by Ms. Pearson (who, as
32. APPELLANT’S OPENING BRIEF
trustee of the trust, had a fiduciary duty to Mr. Quick) of the facts of the existence of the
trust and the denial of notice to Mr. Quick, about whom she knew from before birth (CT
184:15, 186:19). California Appellate Courts are rightfully outraged by this type of
behavior. One court stated:
Few defrauding defendants give any serious thought to the nature or quality of the harm which could befall the victims who rely on their deceptive acts. It would be unconscionable and nonsensical for such perpetrators to escape liability because of their indifference to the consequences of their opprobrious behavior.
Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 85, 94, CR2d 711. A defendant's fraud in
concealing a cause of action against him will toll the statute of limitations, and that
tolling will last as long as a plaintiff's reliance on the misrepresentations is reasonable.
Grisham v. Philip Morris USA, Inc. (2007) 40 C.4th 623, 637 54 CR3d 735. As stated,
reliance becomes unreasonable only when the plaintiff is put on inquiry notice and fails
to take action. Unless the face of the complaint (SAP) can be interpreted only one way,
the court is not in a position to speculate as to when reliance became unreasonable: it is a
question which must be tried and cannot be determined as a matter of law. Id. The facts
of our case go even further: not only did Ms. Pearson intentionally withhold notice and
knowledge of Mr. Quick’s share, she told other beneficiaries to withhold information as
well (CT 186:1).
The pleading of concealment does not require the same adherence to the pleading
requirements of affirmative fraud (when facts known by defendant). Committee on
Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217, 197
Cal.Rptr. 783, See also, Credit Managers Association of Southern California v. Superior
Court (2nd Dist., 1975) 51 Cal.App.3d 352, 361 (regarding demurrers specifically). While
33. APPELLANT’S OPENING BRIEF
Appellant avers that his SAP sufficiently states facts to make out a case for concealment,
this court must evaluate the SAP de novo to determine whether Appellant’s averment is
correct. The analysis in Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 85, 111, CR2d
711 is on point. The court in Lovejoy states:
Not every fraud arises from an affirmative misstatementof material fact. “The principle is fundamental that‘[deceit] may be negative as well as affirmative; it mayconsist of suppression of that which it is one's duty todeclare as well as of the declaration of that which is false.’[Citations.] Thus section 1709 of the Civil Code provides:‘One who willfully deceives another with intent to induce himto alter his position to his injury or risk, is liable for anydamage which he thereby suffers.’ Section 1710 of the CivilCode in relevant part provides: ‘A deceit, within the meaningof the last section, is: . . . 3. The suppression of afact, by one who is bound to disclose it, or who givesinformation of other facts which are likely to mislead forwant of communication of that fact; . . .’” (Citation).
Id. at 95. The court continues:
According to section 550 of the Restatement, a party “whoby concealment or other action intentionally prevents theother from acquiring material information is subject to thesame liability to the other, for pecuniary loss as though hehad stated the nonexistence of the matter that the other wasthus prevented from discovering.
Id. at 96.
The case of Lovejoy cites to Stevens v. Superior Court (2nd Dist., 1986) 180 CA3d
605 to illuminate the point of concealment. Stevens involved a fraud complaint by a
patient against a hospital alleging that the hospital allowed unlicensed physicians to
practice medicine in the hospital. (Id. at 607.) The patient alleged that defendant hospital
concealed this fact from her, that one of the unlicensed physicians participated in a C-
section procedure which was performed on her, and as a result she suffered serious
34. APPELLANT’S OPENING BRIEF
bodily injury. The superior court sustained a demurrer without leave to amend on the
erroneous ground that there was an absence of any allegation that any agent of the
hospital made a direct, affirmative representation upon which she relied concerning the
doctor’s license status. (Id. at p. 608.) On appeal, the Stevens court reversed. The court in
Stevens noted that
[i]t is . . . established by statute that intentional concealment of a material fact is an alternative form of fraud and deceit equivalent to direct affirmative misrepresentation. (Civ. Code, §§ 1572, subd. 3, 1709, and 1710, subd. 3.
Stevens, 180 CA3d at 608-609. Further, the court stated:
[w]here failure to disclose a material fact is calculated to induce a false belief, the distinction between concealment and affirmative misrepresentation is tenuous. Both are fraudulent. An active concealment has the same force and effect as a representation which is positive in form.
Id. at p. 609 (italics added). The court concluded that the complaint adequately pled a
cause of action for fraudulent concealment. Stevens, 180 CA3d at 610.
The element of reliance, as in the Lovejoy case, is also shown in our case
pertaining to concealment. The Lovejoy court stated
There is no problem with reliance, since the only type of reliance required is that ‘the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact.’
Id. at 97. As has been shown, Mr. Quick was unaware of the existence of the trust, the
concealment by Ms. Pearson and the fact that he was a beneficiary under the trust. The
SAP also shows that he would not have acted as he did had he known of these facts:
when he found out about the trust and that he was a potential beneficiary under the trust
he began research into these facts and hired an attorney to complete the investigation.
35. APPELLANT’S OPENING BRIEF
(CT 186:7).
The case of Vega v. Jones, Day, Reavis & Pogue (2nd Dist., 2004) 121 CA4th 282,
___ CR3d ___ states:
Active concealment or suppression of facts by a nonfiduciary “is the equivalent of a false representation, i.e., actual fraud.” (Id., § 678, p. 136 [italics omitted].)
Id. at 291. The court continues, in fn. 7:
See Civil Code section 1710, subdivision 3 (defining deceit as including ‘[t]he suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact’), and Civil Code section 1572, subdivision 3 (defining actual fraud in a contract setting to include the ‘suppression of that which is true, by one having knowledge or belief of the fact’).
Id. at 292, fn. 7. How much more egregious is the active concealment of facts by one who
is a fiduciary to the aggrieved as in our case.
The case of Snapp & Associates Insurance Services, Inc. v. Malcom Bruce
Burlingame Robertson (2002) 96 CA4th 884, 117 CR2d 33 sets forth the public policy
regarding fraudulent concealment as it pertains to the statute of limitations (and which
also can be applied to an argument for laches). That case states:
The doctrine of fraudulent concealment, which is judicially created [citations], limits the typical statute oflimitations. '[T]he defendant's fraud in concealing a cause of action against him tolls the applicable statute of limitations . . . .' [Citations.] In articulating the doctrine, the courts have had as their purpose to disarm a defendant who, by his own deception, has caused aclaim to become stale and a plaintiff dilatory. [Citations.]
Id. at 890. The Snapp case also states:
The doctrine of fraudulent concealment of the cause of action, which applies to any type of case . . . , has an effect similar to the statutory rule of delayed accrual in fraud cases under [Code Civ.
36. APPELLANT’S OPENING BRIEF
Proc., § 338, subd. (d)].
Id. at 890. The conclusion is that concealment is a form of fraud and the pleading
requirements for concealment are not as strict as discussed herein.
The doctrine of constructive fraud also applies in our case as Ms. Pearson stands
in a fiduciary relationship to Mr. Quick. Peterson Development Co. v. Torrey Pines Bank
(1991) 233 Cal.App.3d 103, 116, 284 CR 367.
Therefore, there is another exception to the finality of judgments (CT 244:13).
The exception to that privilege is found in cases where a judgment has been obtained by
"extrinsic fraud," and "the aggrieved party [has been] deliberately kept in ignorance of
the action or proceeding, or in some other way fraudulently prevented from presenting his
claim or defense." Moore v. Conliffe (1994) 7 C.4th 634, 643 fn.5, 29 Cal.Rptr.2d 152,
157 n. 5.
X. MR. QUICK HAS SATISFIED ALL THE ELEMENTS NEEDED TO SHOW BOTH FRAUDULENT CONCEALMENT AND DELAYED DISCOVERY, THUS, THE DEMURRER SHOULD HAVE BEEN OVERRULED BY THE TRIAL COURT
In this case Mr. Quick has satisfied all the elements needed to show both
fraudulent concealment and delayed discovery of the cause of action. The rules regarding
the factors which must be pled are as follows:
When a plaintiff alleges the fraudulent concealment of a cause of action, the same pleading1 and proof is required as in fraud cases: the plaintiff must show (1) the substantive elements of fraud, and (2) an excuse for late discovery of the facts. (Citation). With respect to the fraud itself, "[w]here there is a duty to disclose, the disclosure must be full and complete, and any material concealment or misrepresentation will amount to fraud sufficient to entitle the party injured thereby to an action. [Citations.]" As for the belated discovery, the complaint must allege (1) when the fraud was discovered; (2) the circumstances under which it was
1 Taking into account that the facts were known only by defendant as discussed above at p. 30-31.
37. APPELLANT’S OPENING BRIEF
discovered; and (3) that the plaintiff was not at fault for failing to discover it or had no actual or presumptive knowledge of facts sufficient to put him on inquiry.
Community Cause v. Boatwright (1981) 124 CA3d 888, 900-01, 177 CR 657. Mr. Quick
has pled the elements of fraud and the excuse for the delayed discovery. As is shown
below all the factors listed above are satisfied in Mr. Quick’s SAP.
1. The substantive elements of concealment:
The court in Lovejoy (92 CA4th 85, 96), set forth the elements of fraud
based on concealment:
(A) the defendant must have concealed or suppressed a material fact,
(B) the defendant must have been under a duty to disclose the fact to the plaintiff,
(C) the defendant must have intentionally concealed or suppressed the fact with the intent
to defraud the plaintiff,
(D) the plaintiff must have been unaware of the fact and would not have acted as he did if
he had known of the concealed or suppressed fact, and,
(E) as a result of the concealment or suppression of the fact, the plaintiff must have
sustained damage. Id. at 96.
As applied to this case, the facts in the SAP show that the elements of
concealment have been satisfied.
A. The defendant must have concealed or suppressed a material fact.
This is pled at CT 185:22-186:6 in which the distributions of the trust funds were
disclosed to Petitioner by his half brother, Mickey, not by the trustee, who, in fact, told
the beneficiaries not to disclose to Petitioner (CT 186:1). This is also pled at CT 186:19
wherein Respondent knew that Petitioner was a member of the class of grandchildren and
38. APPELLANT’S OPENING BRIEF
her nephew. This is also pled at CT 186:13-28 wherein Respondent willfully denied
Petitioner notice of his rights.
B. The defendant must have been under a duty to disclose the fact to the plaintiff.
This is pled at CT 184:1 which shows that Ms. Pearson was the trustee of the trust
which requires that she disclose as a fiduciary;
C. The defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff.
This is pled in several places:
1. CT 185:22-186:6 which states that the distributions of the trust funds were disclosed to
Petitioner by his half brother, Mickey, not by the trustee, who, in fact, told the
beneficiaries not to disclose to Petitioner (CT 186:1);
2. CT 186:13-28: wherein Respondent intentionally failed to give Petitioner notice and
denied permission for others to do so (CT 186.1). Here, this court may make inferences
regarding Ms. Pearson’s motives in shutting out Mr. Quick. Marshall v. Gibson, Dunn &
Crutcher (2nd Dist., 1995) 37 Cal.App.4th 1397, 1403, 44 CR2d 339. Appellant avers that
this court may infer that Ms. Pearson concealed the notice to Mr. Quick as a beneficiary
of the trust and the existence of the trust for the purpose of her own financial gain or for
the financial gain of her preferred beneficiaries. Id., See also, Lovejoy v. AT&T Corp.
(2001) 92 Cal.App.4th 85, 90, 92, 111 CR2d 711.
D. The plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact.
This is pled at CT 185:17, 22. Regarding the actions of Petitioner, he clearly
would not have sat on his rights if he knew because we see that once he found out about
the trust he took action within the statutory time (CT 186:7). Such a position is, again,
39. APPELLANT’S OPENING BRIEF
consistent with California law which allows this court to make such an inference.
Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403, 44 CR2d 339.
E. Damages
As a result of the concealment or suppression of the fact, the plaintiff must have
sustained damage. This is pled at CT 185:22 regarding the large distribution of the Vons
property worth $7 million and monthly distributions and at CT 186:14-18. Mr. Quick is a
beneficiary under the trust and Ms. Pearson is in a fiduciary relationship to Mr. Quick.
Mr. Quick should have been receiving the distributions and his share of the sale or
transfer of trust assets. The fact that he was denied notice and knowledge of the trust and
those benefits constitutes his damages.
Reading the SAP liberally and as a whole, as this court must (Colvig v. RKO
General, Inc. (1965) 232 CA2d 56, 68, 42 CR 473, 480), all of these elements are
present. Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 85, 96, 111 CR2d 711. Thus, it
was reversible error for the trial court to sustain the demurrer.
2. The reason for late discovery of the facts
As shown above, this element is divided into 3 sub-elements, all of which
are specifically addressed in the SAP:
A. When the fraud was discovered
The SAP shows that the fraud was not discovered by Petitioner
until early 2007 (CT 185:22, 187:17).
B. The circumstances under which the fraud was discovered
The SAP also addresses this element:
Appellant learned of his biological father, Michael, in 1989 (CT 184:24). Appellant
40. APPELLANT’S OPENING BRIEF
learned of Michael from Shannon Lee Blowitz (CT 184:24). Appellant then began to
develop a relationship with Michael (CT 184:26). Appellant was advised that he was a
beneficiary of the trust in early 2007 by Mickey (CT 185:22). Appellant learned that the
trust language conferred the benefits of the trust on Samuel’s “grandchildren” not on
individually named grandchildren (CT 185:22-26).
C. Appellant was not at fault for failing to discover the trust and had no actual or presumptive knowledge of facts putting on inquiry
The SAP also adequately presents facts showing this element:
CT 186:19-26: Respondent willfully denied Petitioner his rightful inheritance by
refusing to give him notice and by warning others not to do so;
CT 186:26 Respondent willfully failed to distribute any portion of the trust to the
Petitioner;
CT 187:2-7 The Respondent failed to give notice to the Petitioner;
CT 187:8: Respondent failed to make the required distributions to Petitioner as
required by law and the trust instrument; and,
CT 187:12: Petitioner did not receive any of his 1/5 share of the trust.
The law is clear and the facts pled in the SAP are also clear and come within the
protections afforded by law to Mr. Quick. His SAP properly alleges when the fraud was
discovered, the circumstances under which it was discovered and it shows that Mr. Quick
was not at fault for failing to discover the facts because he had no actual or presumptive
knowledge of facts to put him on inquiry notice. Mr. Quick, is, thereby, entitled to
continue his action in the trial court. This case must be reversed and remanded.
Part of the reason the courts consider a statute of limitations defense or a laches
defense is because with the passage of time witnesses and documents disappear and this
41. APPELLANT’S OPENING BRIEF
could be prejudicial to the defendant. Such is not the fact in our case. The witnesses are
still alive and present (Ms. Pearson, the grandchildren). The trust document (order) is still
available (CT 190) which contains the grandfather’s intent. Thus, there is no prejudice to
the Respondent in overruling the demurrer as the case is not stale. Even if this case were
stale, the Appellant is still, as a matter of law (as shown above) entitled to proceed with
his case because the Respondent must be estopped to argue that the case is stale due to
her fraudulent concealment.
The conclusion is that there are no facts pointed to by the Respondent which show
that Mr. Quick was on inquiry notice. Respondent is a fiduciary to Mr. Quick and had a
duty to disclose the existence of the trust and provide Mr. Quick with his 1/5 share. In
fact she concealed those facts from Mr. Quick for decades until after the so called final
distribution. The final judgment rule does not apply because of the concealment. Thus,
the trial court committed reversible error in sustaining the demurrer and further
committed reversible error in denying leave to amend (which Mr. Quick believes is
unnecessary due to the sufficient facts which he pled in the SAP). This case should be
reversed and remanded with instructions to go forward to trial.
XI. BASED UPON ALL THE ABOVE, RESPONDENT’S APPLICATION FOR ORDER DISMISSING PETTITIONER’S SECOND AMENDED PETITION FOR RELIEF FROM BREACH OF TRUST MUST ALSO BE REVERSED AND REMANDED
After the Appellant filed his Notice of Appeal (3/30/09) Respondent
wrongfully filed her Application for Order Dismissing Petitioner’s Second Amended
Petition for Relief from Breach of Trust (4/3/09). Augmented Clerk’s Transcript (“ACT”)
1. The trial court wrongfully granted the Application and dismissed the Petition. (ACT 3).
42. APPELLANT’S OPENING BRIEF
It is long settled that an appeal stays the proceedings in the trial court as to those
matters which are embraced by the appeal to prevent the trial court from rendering the
appeal futile. Cal. Code of Civ. Pro. § 916(a). City of Santa Monica v. Stewart (2nd Dist.,
2005) 126 Cal.App.4th 43, 79, 24 Cal.Rptr.3d 72. It is also settled that the trial court is in
excess of its jurisdiction by dismissing a complaint while an appeal is pending when that
dismissal order affects the appeal. Elsea v. Saberi (1992) 4 CA4th 625, 629, 5
Cal.Rptr.2d 742. In our case the trial court dismissed the action while the appeal was
pending. The dismissal of the matter in the trial court obviously affects the appeal
because a venue is needed for remand. Thus, this court must reverse the dismissal as the
trial court’s dismissal order is reversible error.
The Stewart court stated:
The purpose of the rule depriving the trial court of jurisdiction during the pending appeal is to protect the appellate court's jurisdiction by preserving the status quo until the appeal is decided. The rule prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.
Id. In our case it is of great importance that the case not be dismissed as a dismissal
clearly affects the outcome of the appeal by depriving a venue for remand.
Therefore, the court was in excess of its jurisdiction by dismissing the SAP and
this court should reverse and remand.
XII. CONCLUSION
For the reasons set forth above, the trial court’s order sustaining the demurrer
must be reversed and remanded for trial. While the Appellant believes that the SAP
43. APPELLANT’S OPENING BRIEF
sufficiently states a cause of action and supports both concealment and delayed
discovery, if this court believes otherwise, then this court should reverse and remand
the denial in the trial court of a opportunity to amend.
Dated: September 16, 2009
THE LAW OFFICE OF ALAN GOLDBERG, APLC
By: Alan M. Goldberg
44. APPELLANT’S OPENING BRIEF
DECLARATION OF WORD COUNT
I, ALAN M. GOLDBERG, declare and say as follows:
I am the attorney for Appellant, Robert Quick. I prepared this Appellant’s
Opening Brief. I have personal knowledge of the facts contained in this declaration and if
I am called upon to testify as to these facts, I can and will competently testify.
I used the soft ware program Microsoft Word to prepare this brief. I utilized the
word count feature to count the number of words herein. That feature indicated that there
are 13,244 words in this brief excluding this declaration and including subject headings
and footnotes.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 23rd day of September, 2009 in Encino, CA.
Alan M. Goldberg
45. APPELLANT’S OPENING BRIEF
In re Marriage of Goldman, Case #: B213863
PROOF OF SERVICE - STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I, ALAN M. GOLDBERG, am over the age of 18 years, not a party to the within entitled action; my business address is 16000 Ventura Blvd. #500, Encino, CA 91436;
I served the forgoing RESPONDENT’S BRIEF
__x__ by placing a true and correct copy thereof for collection and mailing in accordance with standard business practice in the United States on the date below enclosed in a sealed envelope with postage fully pre-paid addressed as follows:
Lynette Berg Robe, Esq.12711 Ventura Blvd. #315Studio City, CA 91604___ by fax, ___ page(s), 818-980-7141
Clerk of the CourtSUPERIOR COURT900 Third Street San Fernando, CA 91340
California Supreme Court350 McAllister StreetSan Francisco, CA 941024 copies
I am readily familiar with standard office procedure for collection and processing mail. It is my practice to deposit mail with the United States Post Service on the same day it is submitted for mailing.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Dated: September ___, 2009
LAW OFFICE OF ALAN GOLDBERG, APLC
By: _______________________________ Alan M. Goldberg
46. APPELLANT’S OPENING BRIEF