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WOONCA AA
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Apr-04-2012 3:58 pm
Case Number: PTR-10-294096
Filing Date: Apr-04-2012 3:57
Filed by: ELINA LEINO
Juke Box: 001 Image: 03562768
GENERIC PROBATE PLEADING
IN THE MATTER OF THE THE KONSTIN FAMILY REVOCABLE TRUST TRUST
001P03562768
Instructions:
Please place this sheet on top of the document to be scanned.Solan, Park &
Robello LLP
Sheila K. Robello, Esq. (SBN 209300)
SOLAN, PARK & ROBELLO LLP
685 Market Street, Suite 360
San Francisco, California 94105
Telephone: (415) 777-3300
Facsimile: (415) 777-3301
Attorneys for Trustee and Respondent
John Konstin
Ft
sitig di me
APR O 4 2612
CLERK C
1 Fe OF " Cousr
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
THE KONSTIN FAMILY
REVOCABLE TRUST dated January 9,
1986, 2009 Restatement and
Amendment.
ANN ENID KONSTIN, et al.,
Petitioners,
JOHN K. KONSTIN, et al.,
Respondents.
Case No. PTR-10-294096
(Consolidated for all purposes with
PTR-11-294591)
RESPONDENT JOHN KONSTIN’S
MEMORANDUM OF POINTS &
AUTHORITIES IN SUPPORT OF
DEMURRER TO FIRST AMENDED
PETITION [ete.]
Date: May’ # , 2012
Time: Ree p.m.
Dept.: 204
Hon. Peter J. Busch
RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION2 TABLE OF CONTENTS
TABLE OF AUTHORITIES .. vee bi
5 | INTRODUCTION oiccccsssssescsccssssssecesscssssesesseessersnsetserseesssniseessanssnnsessesseetenee 2
6
7 || STANDARDS FOR DEMURRERS ....essssssssssssssrescssessennescessssnsssneseesssnsnseess 4
8
g | STATEMENT OF FACTS essssssssscesnseeuseenneenrrineetissrensesssensnessessanes 9
Petitioners Lack Standing Te Bring An Elder Abuse Claim
13 Or Another Other Cause Of Action That Belonged To Sydna ..........8
The Claim To The Mazatlan in Property Sale Proceeds
15 Is Time-Barred ...........0 sesetesscsssesnsesnesssensneensecneessees 12
17 | CONCLUSION sscsssssannanusnenenseutneninanssienenatntsnenennssnesee 15
i
Solan, Park &
Robello LLP
RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITIONSolan, Park &
Robello LLP
TABLE OF AUTHORITIES
CASES
Aubry v. Tri-City Hosp. Dist.
(1992) 2 Cal 4th 962 wessecssssssssssssseessvesssssssessessusssesseesserenasssssserseesissnaseeceessnannnesessznnsss 9
Barnett v. Fireman's Fund Ins. Co.
(2001) 90 Cal.App.4th 500 .sssseccsseccsseesseessnessseseessecsseresssessssecennecsuucenenrecnnnecsnnecsnarsessiees 4
Barrington y, A.H. Robins Co.
(1985) 39 Cal.3d 146...ccsessssecsssssecsecceseecenneccensensveccsseesssneensscssnsesannsssnnensneneecnecsserscensstetsaas 14
Blank v. Kirwan
(1985) 39 Cal.3d 311... wid
City of Vista v. Robert Thomas Securities, Inc.
(200) 84 Cal App.4th 882... ccscsseccssesssssscesseccsesssneseeneecsnnsssserssssessenessseesssnecssascensaecsanecy 13
Del E. Webb Corp. v. Structural Materials Co.
(1981) 123 Cal App.3d 593 essessssssssssssssssssssseccessessssssttmmenneesnsessnnssssesessseererenssssssnansssss D
Douglas v. Douglas
(1951) 103 Cal. App.3d 29... csccssesesseseeceecnecsnnerereanercenese
E-Fab, Inc. v. Accountants, Inc. Services
(2007) 153 Cal. App.4th 1308 w.ceccccesseesseceessssessssseneeneensenneenenneesearsnnenecsstssrassegs 4,13
Estate of Anderson (1997)
56 Cal. App.4th 235 vo.ecssssesecsssssescssusesessnsescscceseeconnnesconssseavanseesssensensnseseceecnaeernnnssecsensrscty 9
Fox v. Ethicon Endo-Surgery , Inc.
(2005) 35 Cal.4th 797
Frantz v. Blackwell (1985)
189 Cal.App.3d 91 ..
RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITIONLickter v. Lickter (2010)
189 Cal. App.Ath 712 ....ccssecsccsecscesseeseseneeeeennessressnesessnnnsessnsnnccssnsncenensercesusesresseesseeesans 3,11
Norgart v. Upjohn Co.
(1999) 21 Cal 4th 383 o...scsseccecccecsssssesceeecnsnnnessecessssseeceessanssnsececcanunanecsrersnnannnssssceceassnens 14
Owens v. King Supermarket
(1988) 198 Cal.App.3d 379,
Parsons v. Tickner
(1995) 31 Cal. App.4th 1513 ...cesccssseecsssssesesseneeeeennnseetcnncerssrcsssemecensssneectanesennnnnsenaneecres 10
oD oe IT DH WH —F WN
2
Quiroz v. Seventh Avenue Center
(2006) 140 Cal. App.4th 1256 veessssssscsssssssssseeceessseeceescesnermussssssssssssssessseersesecsssssrsees 14
po
Serrano v. Priest
(1971) 5 Cal 3d S84. .cccccscseceeessestesssssssssssssssssssssnenncecseeeeeeecceeceerrrenrnsvvnssssnessussnnsaneesennnennses
BOG
Shoemaker v. Myers
(1990) 52 Cal.3d Levees
a
n
STATUTES
Code Civ. Proc. § 338 vec essessssssssssseesessrssnesseesseseansennessessecessncenssnecssnsesseeerseneensonceneesacens 13
ec wo N
Prob, Code, §§16061.7, 16061.8.....ccceceeseecseeeeeeetssiesinesieeneesseensensnenenetensrenssenes 6,11
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Welf. & Inst. Code, § 15657.3 ..
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Welf. & Inst. Code, § 1567.3 «0...
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Solan, Park &
Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 INTRODUCTION!
2 The First Amended Petition of Ann Enid Konstin and Sydna Christine Konstin
3 | (“Petitioners”) attempts to assert against their brother John Konstin claims which, if valid,
4 | would have belonged only to their deceased mother Sydna Konstin (“Sydna”). However,
5 | as Respondent Thomas Bomar successfully established in his motion for judgment on the
6 | original Petition, Petitioners lack standing to assert any such claims because Petitioners do
7 | not have a sufficient interest in the property they contend is the subject of the claims. They
8 | are neither intestate heirs nor successors in interest to Sydna; each of Sydna’s Wills made
9 | the Konstin Family Trust her estate’s sole beneficiary.
0 In fact, the only person with standing to assert the alleged claims is Sydna’s
11 | surviving spouse, Constantine (“Gus”) Konstin. He is the sole beneficiary of the Konstin
12 | Family Trust’s Survivor’s Trust, for which he has the power to amend and change the
13 | beneficiaries. Moreover, although Petitioners hint at challenging the Konstin Family Trust,
14 | they can neither do so directly nor ask this Court to alter the trust. Pursuant to Probate
15 | Code sections 16061.7 and 16061.8, the time for any challenge to the Konstin Family
16 | ‘Trust expired long before Petitioners filed their original petition in May 2011. Asa result,
17 | the Konstin Family Trust’s Bypass Trust—Petitioners’ sole claim to beneficiary status-—is
18 | fixed both as to its terms and as to the property it holds. No claim now asserted by
19 | Petitioners can change their interests as beneficiaries of the Bypass Trust.
20 Without a property interest at stake, Petitioners cannot be “interested persons”
21 | under Probate Code section 48. Regardless of the merits or demerits of Petitioners’
22 } allegations, they cannot gain any benefit from the property that is the subject of their
23 ] claims. In short, because they are not “interested parties” under Probate Code section 48
yi The First Amended Petition filed on March 5, 2012, was soon followed by an 16-
25 | page Errata sheet with extensive corrections to the F irst Amended Petition. Consequently,
counsel have had to work with a version of the First Amended Petition that incorporates
26 | the corrections but does not conform to the First Amended Petition’s pagination and line
27 || numbering. As a result, citations for quotations and references to the First Amended
Petition in these papers refer only to the paragraph numbers of the pleading.
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Solan, Park &
Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITIONSolan, Park &
Robello LLP
they have no standing to assert claims in Sydna’s stead. (Lickter v. Lickter (2010) 189
Cal.App.4th 712, 728.) This defect carries through each of their causes of action, whether
under Welfare and Institutions Code section 15610.3 for the alleged claims of elder abuse,
or under Code of Civil Procedure section 377.11 as the purported “successor in interest”
of Sydna.
The only remaining claim that Petitioners could have standing to assert regards the
Mazatlan properties, for which Petitioners now attempt to allege a cause of action against
John Konstin for failure to pay to them the proceeds of the September 2006 sale of one of
those properties. However, Petitioners’ claims of breach of fiduciary duty, amended to
allege this separate and distinct injury for the first time in March 2012, are barred by the
three-year statute of limitations of Code of Civil Procedure section 338, subdivision (d).
Petitioners allege that Sydna gifted the property to them in March 2005 and that they gave
John a power of attorney “to deal with the Mazatlan properties on their behalf.” (1st
Amended Petn., §75-76) They state they executed the power of attorney for the purpose
of selling the property “they owned in Mexico.” (1st Amended Petn., 4120) They allege
that John, acting under the power of attorney, sold the properties on September 14, 2006,
for more than $1.7 million (id, at $77), that John never accounted to them for the proceeds
or put the proceeds in their names (id. at 9, 20, 78, 144) and that they are the rightful
owners of a share of the proceeds. (/d. at J 11, 20, 94.)
Inasmuch as Petitioners raised this claimed injury for the first time in March 2012,
their alleged right to a share of the proceeds of Mazatlan property sale in September 2006
is barred by the discovery rule and the three-year limitation period of Code of Civil
Procedure section 338.
The discovery rule does not encourage dilatory tactics; plaintiffs are charged with
presumptive knowledge of an injury if they have information of circumstances to put them
on inquiry or if they have the opportunity to obtain knowledge from sources open to their
investigation. (Fox v. Ethicon Endo-Surgery , Inc. (2005) 35 Cal.4th 797 [27 Cal.Rptr.3d
661, 668].) Inquiry notice is triggered by suspicion, for the statute of limitations begins to
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RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 | run when “the plaintiffs have reason to at least suspect that a type of wrongdoing has
2 | injured them.” (/bid.) Surely, the passage of two and a half years without receiving an
3 | expected payment would “make a reasonably prudent person suspicious,” thereby
4 | charging Petitioners with knowledge of the facts an investigation would disclose. (E-Fab,
5 | inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1319.) Consequently, the
6 | three-year statute of limitations for their claim to the proceeds necessarily commenced
7 | prior to March of 2009, and the claim first raised in March 2012 therefore is time-barred.
8
9 STANDARDS FOR DEMURRERS
10 The rules governing demurrers are familiar, but bear repeating here in view of
11 | Petitioners’ two voluminous verified pleadings. A demurrer challenges a pleading based
12 | on defects found on the face of the pleading and those matters that can be judicially
13 | noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The “face of the pleading” includes
14 } matters shown in exhibits attached to the pleading or matters shown in a superseded
15 | pleading in the same action. (Frantz v. Blackwell (1985) 189 Cal.App.3d 91, 94.)
16 Courts may take judicial notice of admissions or inconsistent statements made by
17 || the opposing party in earlier pleadings. Likewise, courts can disregard conflicting factual
18 | allegations in the current pleading—unless the opposing party “pleads around” the
19 | inconsistency by including a satisfactory explanation of why prior judicial admissions are
20 | incorrect. (Owens v. King Supermarket (1988) 198 Cal.App.3d 379, 384.) Where, as here,
21 | the material factual allegations in both the original Petition and the First Amended Petition
22 | have been verified, allegations that appeared in the former but were omitted without
23 | explanation in the latter also can be considered on demurrer. (Shoemaker v. Myers (1990)
24 | 52 Cal.3d 1, 12-13.) Further, on demurrer a court can accept as true the contents of
25 | exhibits attached to a pleading and treat as surplusage any allegations about the legal
26 | effect of the exhibits. (Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal-App.4th 500,
27 | 505.)
28
Solan, Park & +
Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 Subject to these limitations for facts judicially noticed or admissions in prior
2 | pleadings, a demurrer admits the truth of all material facts properly pleaded—but not
3 | contentions, deductions or conclusions of fact or law. (Aubry v. Tri-City Hosp. Dist.
4 | (1992) 2 Cal.4th 962, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591; Del E. Webb
5 | Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)
6
7 STATEMENT OF FACTS
8 The First Amended Petition alleges four cause of action—all of which, to a greater
9 | or lesser extent, are attempts to assert claims that would belong to the parties’ deceased
10 | mother, Sydna. For the purposes of this demurrer, however, the particulars of the alleged
11 | claims belonging to Sydna do not matter. What does matter is that none of the properties
12 | involved in Petitioners’ claims, if the claims were valid, would benefit Petitioners.
13 When Sydna died on July 25, 2009, her 2009 Will passed her entire estate to the
14 | Konstin Family Trust. (Ist Amended Petn., 419) Although Petitioners allege that Sydna’s
15 | 2009 pour-over Will is invalid (ibid.), their original Petition alleged that Sydna had
16 | executed an earlier pour-over Will in 2006, which was Exhibit G-3 to the original Petition.
17 | (Orig. Petn., §53 and Exh, G-3 thereto) Upon Sydna’s death, the Bypass Trust of the
18 | Konstin Family Trust became irrevocable. (1st Amended Petn., 16)
19 Petitioners received the statutory Notification by Trustee under Probate Code
20 | section 16061.7 dated September 3, 2009. (Orig. Petn., {15 and Exh. C thereto) The 120-
21 | day statutory period expired long ago. As a consequence, the Konstin Family Trust cannot
22
23
24 2 The First Amended Petition also alleges the existence of a “Konstin Dorchester
Trust,” although Petitioners cannot allege that Sydna or Gus ever executed that
25 | instrument. (1st Amended Petn., 17) Moreover, they do not and cannot allege that the
purported trust was ever funded or ever held title to any property of Sydna’s.
26 Consequently, even if Petitioners’ substantive allegations of misfeasance and breach of
27 | duty had merit, any of Sydna’s property involved in such claims would pass to the
Konstin Family Trust under the terms of her 2009 Will -- and her prior 2006 Will.
28
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Solan, Park &
Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 | be the subject of a challenge and the Bypass Trust of the Konstin Family Trust is fixed as
2 | to its terms and the property held in it. (Prob. Code, §§16061.7, 16061.8.)
3 Gus and Sydna were married in 1954 when Gus was 24 and Sydna was 18. (Orig.
4 | Petn., (3; Ist Amended Petn., 428 (for Sydna’s age of 70 in 2006)) All of Sydna’s property
5 | at her death in 2009 was community property acquired during the course of her long-term
6 | marriage to Gus. (1st Amended Petn., {{]2, 26; Orig. Petn., 49] 3, 22-24)
7 Gus is the surviving settlor of the Konstin Family Trust and Sydna’s surviving
8 | spouse. (Orig. Petn., 420) As the surviving grantor, Gus is the sole beneficiary of the
9 } Survivor’s Trust of the Konstin Family Trust. (Orig. Petn., Exh. A, Art. Eight) Gus can
10 | amend the Survivor’s Trust and change its beneficiaries. (1st Amended Petn., ]67e; Orig.
11 | Petn., Exh. A, Art. Eight)
12 As to the Mazatlan property, Petitioners allege that Sydna owned undeveloped real
13 | properties in Mazatlan that she gifted to her four children on March 22, 2005. (Ist
14 | Amended Petn., 498, 74) One property was a beach-front property that she had put on the
15 | market and for which she had received a purchase inquiry after the gift to her children.
16 | (Orig. Petn., 932) At Sydna’s request, Petitioners each executed a power of attorney
17 | appointing John to deal with the Mazatlan properties on their behalf, including the
18 | authority to sell them on their behalf. (1st Amended Petn., 176; Orig. Petn. 933) The
19 | power of attorney was executed for the purpose of selling the property. (1st Amended
20 | Petn., 420) Acting under the power of attorney, John sold the beachfront Mazatlan
21 | property on September 14, 2006, for more than $1.7 million. (1st Amended Petn., 777;
22 |) Orig. Petn. 433)
23 According to Petitioners, John transferred the sale proceeds to an account in his
24 | and Sydna’s names and never accounted for the sale proceeds or put the proceeds in their
25 | names. (Ist Amended Petn., {99, 20, 78, 144) Petitioners allege in the First Amended
26 | Petition that they are the rightful owners of shares in those proceeds, (1st Amended Petn.,
27 | 411, 20, 94) They asserted this claim for the first time in the First Amended Petition on
28 | March 5, 2012.
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Sotan, Park &
Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 DISCUSSION
2 Each of the causes of action alleged by Petitioners depends on whether they have
3 | standing as Sydna’s successors in interest under Code of Civil Procedure section 377.11 or
4 | as “interested persons” under Probate Code section 48. (See Ist Amended Petn., {§19,
5 | 115.) However, Petitioners fail to allege any facts that, if true, would establish their
6 | claimed status and standing. Instead, Petitioners rely only on the assertion of legal
7 | conclusions unsupported by the necessary predicate facts.
8 As explained below, Petitioners lack standing even under the broad scope afforded
9 | for elder abuse claims under Welfare and Institutions Code section 15610.30. The inability
10 | to allege facts establishing a right in themselves under that cause of action necessarily
11 | precludes their ability to claim standing to assert their other causes of action that would
12 | have belonged to Sydna if they were valid. Those causes of action depend on the same
13 | tests for standing under the Code of Civil Procedure and Probate Code that Petitioners fail
14 | to meet in claiming standing to allege elder abuse.
15 The only claim asserted by Petitioners that does not attempt to assert Sydna’s rights
16 | is their alleged expectation of receiving the proceeds of the sale of the Mazatlan property.
17 | Petitioners interweave this claim into the first, third and fourth causes of action of the First
18 | Amended Petition. This claimed injury was not alleged in the original Petition and so does
19 | not benefit from the “relation back” rule; for statute of limitations purposes the action on
20 | this claim was commenced with the filing of the First Amended Petition on March 5,
21 | 2012. Inasmuch as Petitioners claim injury from not receiving the expected proceeds of a
22 | sale that occurred on September 14, 2006, a reasonably prudent person would have
23 | become suspicious of the alleged injury long before the March 5, 2009, cut-off date for the
24 | three-year statute of limitations of Code of Civil Procedure section 338, subdivision (d).
25 Accordingly, each asserted cause of action in the First Amended Petition fails to
26 } state facts sufficient to state a cause of action in Petitioners.
27
28
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Solan, Park &
Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 | Petitioners Lack Standing To Bring An Elder Abuse Claim Or Another Other Cause Of
2 Action That Belonged To Sydna
3 In order to assert a claim for financial elder abuse under Welfare and Institutions
4 | Code section 15610.30, Petitioners must have standing to assert a cause of action that,
5 | were it true, would have belonged to Sydna prior to her death in 2009. To have standing,
6 | Petitioners must allege facts that show they are either:
7 (A) Intestate heirs whose interest is affected by the cause of action;
8 (B) Sydna’s successor in interest, as defined in Code of Civil Procedure section
9 377.11; or
10 (C) An “interested person” as defined in Probate Code section 48.
11 (Welf. & Inst. Code, § 1567.3, subds. (d)(1)(A). (B), (C), and (d)(2).)
12 | As discussed below, Petitioners have not asserted facts sufficient to satisfy any of these
13 | standing requirements and are incapable of doing so. Sydna’s surviving spouse, Gus, is the
14 | only person who potentially or properly has the requisite standing for such claims. In the
15 | wake of Respondent Bomar’s earlier successful motion for judgment on the pleadings on
16 | this same issue, Petitioners have attempted to obscure their lack of standing with
17 | conclusory allegations and vague assertions concerning an invalid 2009 Will, unidentified
18 | “non-trust property,” and hypothetical tax issues. (1st Amended Petn., 4 19.) None of these
19 | assertions, even under the lenient standards of a demurrer, establish that Petitioners have
20 || standing to prosecute this cause of action.
21 First, there is no intestate estate for Sydna. The First Amended Petition alleges
22 | Sydna’s 2009 Will is invalid, but conveniently omits any mention of Sydna’s prior Wills,
23 | each of which also were pour-over Wills that made the Konstin Family Trust the primary
24 | vehicle for fulfilling her estate plan. That omission in the First Amended Petition is
25 | corrected for purposes of demurrer by the original Petition’s allegation that Sydna
26 | executed the 2006 Will attached to the original Petition as Exhibit G-3. (Orig. Petn., 953.)
27 | That 2006 Will, like Sydna’s 2009 Will, gives all of her estate to the Konstin Family Trust.
28 | (Orig. Petn., Exh. G-3.) Consequently, under the doctrine of dependent relative revocation
-8-
Solan, Park &
Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 | (see Estate of Anderson (1997) 56 Cal.App.4th 235, 242-243), Sydna’s 2006 Will would
2] maintain her intention to make the Konstin Family Trust the beneficiary of her estate if
3 | her 2009 Will was not valid.
4 Further, even if there were no prior Wills there still would be no basis for finding
Petitioners are intestate heirs to Sydna’s estate. As Sydna’s surviving spouse, Gus would
succeed to Sydna’s estate and causes of action, if any, pursuant to Probate Code sections
5
6
71 6401 and 6402. Petitioners do not allege that Sydna died possessed of any separate
8 | property or quasi-community property. Indeed, all of Sydna’s property at her death was
9 | community property acquired during the course of her long-term marriage to Gus. (Ist
0 | Amended Petn., §f 2, 26; Orig. Petn., {ff 3, 22-24.
ll Gus also stands in the way of Petitioners’ qualifying as Sydna’s successor in
12 | interest under Code of Civil Procedure section 377.11. Under that section, standing as a
13 | decedent's “successor in interest” requires facts to show the party is a “beneficiary of the
14 | decedent’s estate or other successor in interest who succeeds ... to a particular item of the
15 | property that is the subject of a cause of action.”
16 Under Code of Civil Procedure section 377.10, the “beneficiary of a decedent’s
17 || estate” means:
(a) If the decedent died leaving a will, the sole beneficiary or all of the
18
beneficiaries who succeed to a cause of action, or to a particular item of property
19 that is the subject of a cause of action, under the decedent’s will
20 (b) If the decedent died without leaving a will, the sole person or all of the persons
1 who succeed to a cause of action, or to a particular item of property that is the
subject of cause of action, under Sections 6401 or 6402 of the Probate Code ....
22
n Here again, as Respondent Bomar correctly stated in his successful challenge to the
2 original Petition, the beneficiary of Sydna’s estate is the Konstin Family Trust. Any
25
3 The only property referred to in the First Amended Petition as having been Sydna’s
26 separate property is the Mazatlan property in Mexico. (See, ¢.g., Ist Amended Petn., 74)
27 | However, the First Amended Petition also alleges that “on March 22, 2005, Sydna gifted
the Mazatlan properties to her four children.” (/d., at 75) Consequently, according to
28 | Petitioners, when Sydna died in 2009 she had no separate property.
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Solan, Park &
Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 | property in, or added to, Sydna’s estate would be held by the Konstin Family Trust.
2 | Petitioners fail to allege any material facts that would support a different conclusion.
3 Sydna’s Wills directed that all of her estate be poured-over into the Konstin Family
4 | Trust. Under Sections 5.01, 7.01 and 8.01 of the Konstin Family Trust, all of Sydna’s
5 || interest in her property would be transferred to the Survivor’s Trust. Gus is the sole
beneficiary of the Survivor’s Trust and can amend the Survivor’s Trust and change the
6
7 | beneficiaries during his lifetime. Thus, Petitioners cannot amend the First Amended
8 | Petition in order to allege they would benefit from any of the unidentified “non-trust
9
property.”
10 Even if all of Sydna’s Wills were ignored, then Gus would succeed to Sydna’s
11 | property as her surviving spouse under Probate Code section 6401, subdivision (a). That
12 | provision passes the one-half of community property that belonged to a decedent to the
13 | surviving spouse. Inasmuch as all of Sydna’s property at her death was community
14 } property, all such property would have passed to Gus under the pertinent Probate Code
15 | provision if Sydna had left no effective Will. If that were the case, Gus would be the only
16 | person who qualifies as Sydna’s successor in interest under Welfare and Institutions Code
17 | section 1567.3, subds. (d)(1)(B). (See Parsons v. Tickner (1995) 31 Cal-App.4th 1513,
18 | 1524.) Consequently, Petitioners cannot claim standing on that basis.
19 Petitioners’ final basis for standing depends on qualifying as an “[a]n interested
20 |) person, as defined in Section 48 of the Probate Code....” (Welf. & Inst. Code, § 15657.3,
21 | subd. (d)(1)(C).) As pertinent here, Probate Code section 48 states: “(a) Subject to
22 | subdivision (b), ‘interested person’ includes any of the following: [] (1) An heir, devisee,
23 | child, spouse, creditor, beneficiary, and any other person having a property right in or
24 | claim against a trust estate or the estate of the decedent which may be affected by the
25 | proceeding .... (b) The meaning of ‘interested person’ as it relates to particular persons
26 | may vary from time to time and shall be determined according to the particular purposes
27 | of, and matter involved in, any proceeding.”
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Solan, Park &
Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 This seemingly broad standing provision nevertheless incorporates a stringent
2 | qualification—any person claiming to have standing under Probate Code section 48 must
3 | have a “property right in or claim against a trust or the estate of a decedent which may be
4 | affected by the proceeding.” (Lickter v. Lickter, supra, 189 Cal.App.4th at p. 728.) As
5 | stated by the court in Lickter: “Applying this definition of an ‘interested person’ to an
6 | elder abuse action through subdivision (d)(1)(C) of Welfare and Institutions Code section
7 | 15657.3, it follows that to pursue such an action as a ‘beneficiary’ of the elder’s trust, the
8 | beneficiary must have ‘a property right in or claim against [the] trust estate ... which may
9 | be affected by the’ elder abuse action.” (Lickter v. Lickter, supra, 189 Cal.App.4th at p.
10 | 728.) The same necessarily holds for each cause of action Petitioners attempt to assert on
11 | the basis that they are beneficiaries of Konstin Family Trust.
12 Petitioners have no interest in the Konstin Family Trust that would be impaired or
13 | improved by their elder abuse claims or their other claims. Regardless of the merit—or
14 | lack thereof—in their causes of action, Petitioners will acquire neither additional property
15 } nor any increased interest in the Konstin Family Trust than they otherwise would receive.
16 | Accordingly, they lack any standing to assert such causes of action.
\7 Petitioners are beneficiaries only under the Bypass Trust of the Konstin Family
18 | Trust. The Bypass Trust became irrevocable upon Sydna’s death. (1st Amended Petn.,
19 | 416) Petitioners received the statutory Notification by Trustee under Probate Code section
20 | 16061.7 dated September 3, 2009. (Orig. Petn., 415 and Exh. C thereto) No action to
21 | contest the Konstin Family Trust can now be initiated. (Prob. Code, §§ 16061.7, 16061.8.)
22 | Asa result, the Bypass Trust of the Konstin Family Trust is fixed as to its terms and as to
23 | the property held in it. Petitioners’ claims concerning properties in which Sydna once held
24 | an interest cannot result in the addition of those properties to the Bypass Trust so as to
25 | benefit Petitioners. In short, they have no stake in the claims they attempt to press in
26 | Sydna’s stead.
27 None of these factual deficiencies in the First Amended Petition can be altered by
28 | further amendment. The same lack of standing that was apparent on the face of the
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Solan, Park &
Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 | original Petition, and which constituted the grounds for this Court’s grant of Respondent
2 | Bomar’s motion for judgment on that pleading, continues in the First Amended Petition.
3 | Petitioners cannot cure these fundamental factual defects so as to establish their standing.
4 Therefore, the Court should sustain this demurrer without leave to amend as to the
5 | second cause of action for elder abuse. That cause of action asserts only a claim for which
6 | Petitioners are not the real parties in interest because they are neither successors in interest
7 | under Code of Civil Procedure section 377.11 nor interested persons under Probate Code
8 | section 48. The same defect affects each of the causes of action asserted by Petitioners.
9 | As discussed below, the late addition of a claim to proceeds of the Mazatlan property sale,
10 | woven into the three other causes of action of the First Amended Petition, fails for the
11 | additional reason that the claim is untimely.
12
13 The Claim To The Mazatlan Property Sale Proceeds Is Time-Barred
14 Petitioners state that Sydna gifted the Mazatlan property to them in March 2005,
15 | and that they gave John a power of attorney to deal with the property on their behalf. (Ist
16 | Amended Petn., §75-76) They executed the power of attorney for the purpose of selling
17 | the property. (1st Amended Petn., 20) They allege that John, acting under the power of
18 | attorney, sold the property on September 14, 2006, for over $1.7 million. (1st Amended
19 | Petn., 477) They also assert that John never accounted to them for the sale proceeds or put
20 || the sale proceeds in an account under their names, although they claim to be the rightful
21 | owners of shares of those proceeds. (1st Amended Petn., 499, 11, 20, 78, 94, 144)
22 The original Petition in this action contains no allegation that Petitioners were
23 | entitled in their own right to a share of the Mazatlan property sale proceeds. The original
24 | Petition did not allege that John deprived them of monies due them from the sale. (See
25 | Orig. Petn., §¥ 32-33) Consequently, the original Petition contained no allegation of injury
26 }) to Petitioners with respect to the Mazatlan property sale.
27 Now, in the First Amended Petition, the Petitioners allege that they were
28 | fraudulently deprived of their share in the Mazatlan property sale proceeds by reason of
Solan, Park & 72:
Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 | breaches of trust and fiduciary duty. Such claims, which sound in fraud, are subject to the
three-year statute of limitations for fraud. As the court stated in City of Vista v. Robert
Thomas Securities, Inc. (200) 84 Cal.App.4th 882, 889: “The statute of limitations that
applies to an action is governed by the gravamen of the complaint, not the cause of action
pled. [Citation.] The gravamen of [plaintiff's] complaint is that [defendant’s] acts
constituted actual or constructive fraud. The applicable statute of limitations for fraud is
ya aA WF YW HD
three years, (Code Civ. Proc. § 338, subd. (d).)” This statutory provision applies as well to
8 | actions seeking the equitable remedy of imposition of a constructive trust. (Douglas v.
9 | Douglas (1951) 103 Cal.App.3d 29, 32.) Under that provision, the cause of action must be
10 } brought within three years after accrual, which occurs upon discovery of the facts
11 | constituting the fraud.
12 Actual discovery is not required because the discovery rule is not intended to
13 | encourage dilatory tactics. A party is charged with presumptive knowledge of an injury
14 | when they have information of circumstances to put them on inquiry or the opportunity to
15 | obtain knowledge from sources open to their investigation. (Fox v. Ethicon Endo-Surgery,
16 | Inc., supra, 35 Cal.4th 797 [27 Cal.Rptr.3d at p. 668].) While a fiduciary relationship that
17 } causes a party to rely on the fiduciary may relax the duty to inquire, discovery will be
18 } imputed—and the cause of action will accrue—when the party becomes aware of facts
19 | that would make a reasonably prudent persons suspicious. (E-Fab, Inc. v. Accountants,
20 | Inc. Services, supra, 153 Cal.App.4th at p. 1319.)
21 Here, Petitioners have alleged that Sydna received a purchase inquiry for the
22 || Mazatlan property. (Orig, Petn., {{31-32) They stated that prior to the sale of the property,
23 | they gave John a power of attorney empowering him to sell the property on their behalf at
24 | Sydna’s request. (Orig. Petn., 33) The power of attorney was executed for the purpose of
25 | selling the property, which they allege that John did on September 14, 2006, for
26 | approximately $1.7 million. (1st Amended Petn., (20, 77) In the First Amended Petition
27 | they allege that John never accounted to them for the proceeds of the sale and never put
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Solan, Park &
Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 || the proceeds in their name, although they claim to be the rightful owners of a share of
2 | those proceeds. (1st Amended Petn., 499, 11, 20, 78, 94, 144)
3 The First Amended Petition was filed on March 5, 2012, which sets the statutory
4 | period boundary at March 5, 2009. If Petitioners became aware of facts that would make a
5 | reasonably prudent persons suspicious of John’s alleged handling of the sale proceeds
6 | before that date, their action is time-barred. The power of attorney was executed in 2006
7 | at Sydna’s request and the sale of the property followed on September 14, 2006. There
8 | can be no question but that a reasonably prudent person, expecting to receive proceeds
9 | from the sale of property and having executed a power of attorney for that purpose, would
10 | become suspicious sometime before two and a half years passed without any payment. By
11 | March 5, 2009, Petitioners knew, or had reason to know, the facts of their alleged cause of
12 | action regarding the Mazatlan proceeds disposition.
13 Petitioners cannot claim the earlier filing date of the original Petition as the
14 | commencement date of this claim. An amended action commenced after the statute of
15 } limitations has run that alleges a new cause of action relates back to the original filing
16 | only if the new claim is based on the same operative facts as the original and seeks
17 | recovery from the same defendant for the same injury. (Norgart v. Upjohn Co. (1999) 21
18 | Cal.4th 383, 408-409; Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 150.) Where
19 | the amendment does not allege the same injury, i.e., it does not assert an invasion of the
20 | same primary right, then the amendment will not relate back. (Quiroz v. Seventh Avenue
21 | Center (2006) 140 Cal.App.4th 1256, 1262, 1264-1265.)
22 Petitioners claim a right to proceeds from a property sale in 2006. The passage of
23 | two and a half years without receipt of the claimed proceeds necessarily put Petitioners on
24 | inquiry notice with respect to their claims against John for those funds. The statute of
25 | limitations on Petitioners’ claims therefore commenced prior to March 5, 2009, and the
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Solan, Park &
Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 | cause of action they added for these claims in the First Amended Petition on March 5,
2 | 2012, are time-barred.’
3
4
5 CONCLUSION
6 In this second attempt to allege facts that establish they have standing to assert
7 | claims in Sydna’s name, Petitioners demonstrate only that they will not be able to do so.
8 | Petitioners are beneficiaries only of the Konstin Family Trust’s Bypass Trust, which is
9 | fixed both as to its terms and the property it holds. Consequently, Petitioners have no
10 | property interest in the properties that are the subjects of their causes of action. Without a
11 | stake in the property interests of their claims, they have no standing under the Code of
12 | Civil Procedure or the Probate Code or the Welfare and Institutions Code. The only person
13 | who does have standing for such claims under the California statutes is Sydna’s surviving
14 | spouse, Gus, her successor in interest.
15 Petitioners seek to avoid this result by intertwining in the first, third and fourth
16 | causes of action their recently-added claim to the proceeds of the Mazatlan property’s sale
17 | in 2006. However, that claim is time-barred on the face of the pleadings and Petitioners
18 | cannot allege facts that would show an inability to have discovered the basis of their
19 | claims, despite reasonable diligence, during the two and a half year period following the
20 || property’s sale.
21
‘ At the very least, the First Amended Petition fails to meet the pleading
22 requirements for reliance on the discovery rule, As the court stated in Fox v. Ethicon
23 | Endo-Surgery, Inc. supra, 35 Cal. 4th 661 [27 Cal.Rptr.3¢ at p. 668]: “In order to rely on
the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint
shows on its face that his claim would be barred without the benefit of the discovery rule
25 | must specifically plead facts to show (1) the time and manner of discovery and (2) the
26 | inability to have made earlier discovery despite reasonable diligence.’ [Citation.} In
assessing the sufficiency of the allegations of delayed discovery, the court places the
burden on the plaintiff to ‘show diligence’; ‘conclusory allegations will not withstand
28 | demurrer.’ [Citation.]”
24
27
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Solan, Park &
Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITIONSolan, Park &
Robello LLP
For the foregoing reasons, the demurrer should be sustained without leave to
amend as to each cause of action of the First Amended Petition.
Dated: April 4, 2012 SOLAN, PARK & ROBELLO, LLP
By: § Laecfe! Ke ble
Sheila K. Robello
Attomeys for Trustee and Respondent
John Konstin
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RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION
Preview
WOONCA AA SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Apr-04-2012 3:58 pm Case Number: PTR-10-294096 Filing Date: Apr-04-2012 3:57 Filed by: ELINA LEINO Juke Box: 001 Image: 03562768 GENERIC PROBATE PLEADING IN THE MATTER OF THE THE KONSTIN FAMILY REVOCABLE TRUST TRUST 001P03562768 Instructions: Please place this sheet on top of the document to be scanned.Solan, Park & Robello LLP Sheila K. Robello, Esq. (SBN 209300) SOLAN, PARK & ROBELLO LLP 685 Market Street, Suite 360 San Francisco, California 94105 Telephone: (415) 777-3300 Facsimile: (415) 777-3301 Attorneys for Trustee and Respondent John Konstin Ft sitig di me APR O 4 2612 CLERK C 1 Fe OF " Cousr SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO THE KONSTIN FAMILY REVOCABLE TRUST dated January 9, 1986, 2009 Restatement and Amendment. ANN ENID KONSTIN, et al., Petitioners, JOHN K. KONSTIN, et al., Respondents. Case No. PTR-10-294096 (Consolidated for all purposes with PTR-11-294591) RESPONDENT JOHN KONSTIN’S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO FIRST AMENDED PETITION [ete.] Date: May’ # , 2012 Time: Ree p.m. Dept.: 204 Hon. Peter J. Busch RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION2 TABLE OF CONTENTS TABLE OF AUTHORITIES .. vee bi 5 | INTRODUCTION oiccccsssssescsccssssssecesscssssesesseessersnsetserseesssniseessanssnnsessesseetenee 2 6 7 || STANDARDS FOR DEMURRERS ....essssssssssssssrescssessennescessssnsssneseesssnsnseess 4 8 g | STATEMENT OF FACTS essssssssscesnseeuseenneenrrineetissrensesssensnessessanes 9 Petitioners Lack Standing Te Bring An Elder Abuse Claim 13 Or Another Other Cause Of Action That Belonged To Sydna ..........8 The Claim To The Mazatlan in Property Sale Proceeds 15 Is Time-Barred ...........0 sesetesscsssesnsesnesssensneensecneessees 12 17 | CONCLUSION sscsssssannanusnenenseutneninanssienenatntsnenennssnesee 15 i Solan, Park & Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITIONSolan, Park & Robello LLP TABLE OF AUTHORITIES CASES Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal 4th 962 wessecssssssssssssseessvesssssssessessusssesseesserenasssssserseesissnaseeceessnannnesessznnsss 9 Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500 .sssseccsseccsseesseessnessseseessecsseresssessssecennecsuucenenrecnnnecsnnecsnarsessiees 4 Barrington y, A.H. Robins Co. (1985) 39 Cal.3d 146...ccsessssecsssssecsecceseecenneccensensveccsseesssneensscssnsesannsssnnensneneecnecsserscensstetsaas 14 Blank v. Kirwan (1985) 39 Cal.3d 311... wid City of Vista v. Robert Thomas Securities, Inc. (200) 84 Cal App.4th 882... ccscsseccssesssssscesseccsesssneseeneecsnnsssserssssessenessseesssnecssascensaecsanecy 13 Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal App.3d 593 essessssssssssssssssssssseccessessssssttmmenneesnsessnnssssesessseererenssssssnansssss D Douglas v. Douglas (1951) 103 Cal. App.3d 29... csccssesesseseeceecnecsnnerereanercenese E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal. App.4th 1308 w.ceccccesseesseceessssessssseneeneensenneenenneesearsnnenecsstssrassegs 4,13 Estate of Anderson (1997) 56 Cal. App.4th 235 vo.ecssssesecsssssescssusesessnsescscceseeconnnesconssseavanseesssensensnseseceecnaeernnnssecsensrscty 9 Fox v. Ethicon Endo-Surgery , Inc. (2005) 35 Cal.4th 797 Frantz v. Blackwell (1985) 189 Cal.App.3d 91 .. RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITIONLickter v. Lickter (2010) 189 Cal. App.Ath 712 ....ccssecsccsecscesseeseseneeeeennessressnesessnnnsessnsnnccssnsncenensercesusesresseesseeesans 3,11 Norgart v. Upjohn Co. (1999) 21 Cal 4th 383 o...scsseccecccecsssssesceeecnsnnnessecessssseeceessanssnsececcanunanecsrersnnannnssssceceassnens 14 Owens v. King Supermarket (1988) 198 Cal.App.3d 379, Parsons v. Tickner (1995) 31 Cal. App.4th 1513 ...cesccssseecsssssesesseneeeeennnseetcnncerssrcsssemecensssneectanesennnnnsenaneecres 10 oD oe IT DH WH —F WN 2 Quiroz v. Seventh Avenue Center (2006) 140 Cal. App.4th 1256 veessssssscsssssssssseeceessseeceescesnermussssssssssssssessseersesecsssssrsees 14 po Serrano v. Priest (1971) 5 Cal 3d S84. .cccccscseceeessestesssssssssssssssssssssnenncecseeeeeeecceeceerrrenrnsvvnssssnessussnnsaneesennnennses BOG Shoemaker v. Myers (1990) 52 Cal.3d Levees a n STATUTES Code Civ. Proc. § 338 vec essessssssssssseesessrssnesseesseseansennessessecessncenssnecssnsesseeerseneensonceneesacens 13 ec wo N Prob, Code, §§16061.7, 16061.8.....ccceceeseecseeeeeeetssiesinesieeneesseensensnenenetensrenssenes 6,11 nN 3 Welf. & Inst. Code, § 15657.3 .. Nv N nv Welf. & Inst. Code, § 1567.3 «0... yoN NN NN eo 2a A A SF Ww -ii- Solan, Park & Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 INTRODUCTION! 2 The First Amended Petition of Ann Enid Konstin and Sydna Christine Konstin 3 | (“Petitioners”) attempts to assert against their brother John Konstin claims which, if valid, 4 | would have belonged only to their deceased mother Sydna Konstin (“Sydna”). However, 5 | as Respondent Thomas Bomar successfully established in his motion for judgment on the 6 | original Petition, Petitioners lack standing to assert any such claims because Petitioners do 7 | not have a sufficient interest in the property they contend is the subject of the claims. They 8 | are neither intestate heirs nor successors in interest to Sydna; each of Sydna’s Wills made 9 | the Konstin Family Trust her estate’s sole beneficiary. 0 In fact, the only person with standing to assert the alleged claims is Sydna’s 11 | surviving spouse, Constantine (“Gus”) Konstin. He is the sole beneficiary of the Konstin 12 | Family Trust’s Survivor’s Trust, for which he has the power to amend and change the 13 | beneficiaries. Moreover, although Petitioners hint at challenging the Konstin Family Trust, 14 | they can neither do so directly nor ask this Court to alter the trust. Pursuant to Probate 15 | Code sections 16061.7 and 16061.8, the time for any challenge to the Konstin Family 16 | ‘Trust expired long before Petitioners filed their original petition in May 2011. Asa result, 17 | the Konstin Family Trust’s Bypass Trust—Petitioners’ sole claim to beneficiary status-—is 18 | fixed both as to its terms and as to the property it holds. No claim now asserted by 19 | Petitioners can change their interests as beneficiaries of the Bypass Trust. 20 Without a property interest at stake, Petitioners cannot be “interested persons” 21 | under Probate Code section 48. Regardless of the merits or demerits of Petitioners’ 22 } allegations, they cannot gain any benefit from the property that is the subject of their 23 ] claims. In short, because they are not “interested parties” under Probate Code section 48 yi The First Amended Petition filed on March 5, 2012, was soon followed by an 16- 25 | page Errata sheet with extensive corrections to the F irst Amended Petition. Consequently, counsel have had to work with a version of the First Amended Petition that incorporates 26 | the corrections but does not conform to the First Amended Petition’s pagination and line 27 || numbering. As a result, citations for quotations and references to the First Amended Petition in these papers refer only to the paragraph numbers of the pleading. -2- Solan, Park & Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITIONSolan, Park & Robello LLP they have no standing to assert claims in Sydna’s stead. (Lickter v. Lickter (2010) 189 Cal.App.4th 712, 728.) This defect carries through each of their causes of action, whether under Welfare and Institutions Code section 15610.3 for the alleged claims of elder abuse, or under Code of Civil Procedure section 377.11 as the purported “successor in interest” of Sydna. The only remaining claim that Petitioners could have standing to assert regards the Mazatlan properties, for which Petitioners now attempt to allege a cause of action against John Konstin for failure to pay to them the proceeds of the September 2006 sale of one of those properties. However, Petitioners’ claims of breach of fiduciary duty, amended to allege this separate and distinct injury for the first time in March 2012, are barred by the three-year statute of limitations of Code of Civil Procedure section 338, subdivision (d). Petitioners allege that Sydna gifted the property to them in March 2005 and that they gave John a power of attorney “to deal with the Mazatlan properties on their behalf.” (1st Amended Petn., §75-76) They state they executed the power of attorney for the purpose of selling the property “they owned in Mexico.” (1st Amended Petn., 4120) They allege that John, acting under the power of attorney, sold the properties on September 14, 2006, for more than $1.7 million (id, at $77), that John never accounted to them for the proceeds or put the proceeds in their names (id. at 9, 20, 78, 144) and that they are the rightful owners of a share of the proceeds. (/d. at J 11, 20, 94.) Inasmuch as Petitioners raised this claimed injury for the first time in March 2012, their alleged right to a share of the proceeds of Mazatlan property sale in September 2006 is barred by the discovery rule and the three-year limitation period of Code of Civil Procedure section 338. The discovery rule does not encourage dilatory tactics; plaintiffs are charged with presumptive knowledge of an injury if they have information of circumstances to put them on inquiry or if they have the opportunity to obtain knowledge from sources open to their investigation. (Fox v. Ethicon Endo-Surgery , Inc. (2005) 35 Cal.4th 797 [27 Cal.Rptr.3d 661, 668].) Inquiry notice is triggered by suspicion, for the statute of limitations begins to -3- RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 | run when “the plaintiffs have reason to at least suspect that a type of wrongdoing has 2 | injured them.” (/bid.) Surely, the passage of two and a half years without receiving an 3 | expected payment would “make a reasonably prudent person suspicious,” thereby 4 | charging Petitioners with knowledge of the facts an investigation would disclose. (E-Fab, 5 | inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1319.) Consequently, the 6 | three-year statute of limitations for their claim to the proceeds necessarily commenced 7 | prior to March of 2009, and the claim first raised in March 2012 therefore is time-barred. 8 9 STANDARDS FOR DEMURRERS 10 The rules governing demurrers are familiar, but bear repeating here in view of 11 | Petitioners’ two voluminous verified pleadings. A demurrer challenges a pleading based 12 | on defects found on the face of the pleading and those matters that can be judicially 13 | noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The “face of the pleading” includes 14 } matters shown in exhibits attached to the pleading or matters shown in a superseded 15 | pleading in the same action. (Frantz v. Blackwell (1985) 189 Cal.App.3d 91, 94.) 16 Courts may take judicial notice of admissions or inconsistent statements made by 17 || the opposing party in earlier pleadings. Likewise, courts can disregard conflicting factual 18 | allegations in the current pleading—unless the opposing party “pleads around” the 19 | inconsistency by including a satisfactory explanation of why prior judicial admissions are 20 | incorrect. (Owens v. King Supermarket (1988) 198 Cal.App.3d 379, 384.) Where, as here, 21 | the material factual allegations in both the original Petition and the First Amended Petition 22 | have been verified, allegations that appeared in the former but were omitted without 23 | explanation in the latter also can be considered on demurrer. (Shoemaker v. Myers (1990) 24 | 52 Cal.3d 1, 12-13.) Further, on demurrer a court can accept as true the contents of 25 | exhibits attached to a pleading and treat as surplusage any allegations about the legal 26 | effect of the exhibits. (Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal-App.4th 500, 27 | 505.) 28 Solan, Park & + Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 Subject to these limitations for facts judicially noticed or admissions in prior 2 | pleadings, a demurrer admits the truth of all material facts properly pleaded—but not 3 | contentions, deductions or conclusions of fact or law. (Aubry v. Tri-City Hosp. Dist. 4 | (1992) 2 Cal.4th 962, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591; Del E. Webb 5 | Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) 6 7 STATEMENT OF FACTS 8 The First Amended Petition alleges four cause of action—all of which, to a greater 9 | or lesser extent, are attempts to assert claims that would belong to the parties’ deceased 10 | mother, Sydna. For the purposes of this demurrer, however, the particulars of the alleged 11 | claims belonging to Sydna do not matter. What does matter is that none of the properties 12 | involved in Petitioners’ claims, if the claims were valid, would benefit Petitioners. 13 When Sydna died on July 25, 2009, her 2009 Will passed her entire estate to the 14 | Konstin Family Trust. (Ist Amended Petn., 419) Although Petitioners allege that Sydna’s 15 | 2009 pour-over Will is invalid (ibid.), their original Petition alleged that Sydna had 16 | executed an earlier pour-over Will in 2006, which was Exhibit G-3 to the original Petition. 17 | (Orig. Petn., §53 and Exh, G-3 thereto) Upon Sydna’s death, the Bypass Trust of the 18 | Konstin Family Trust became irrevocable. (1st Amended Petn., 16) 19 Petitioners received the statutory Notification by Trustee under Probate Code 20 | section 16061.7 dated September 3, 2009. (Orig. Petn., {15 and Exh. C thereto) The 120- 21 | day statutory period expired long ago. As a consequence, the Konstin Family Trust cannot 22 23 24 2 The First Amended Petition also alleges the existence of a “Konstin Dorchester Trust,” although Petitioners cannot allege that Sydna or Gus ever executed that 25 | instrument. (1st Amended Petn., 17) Moreover, they do not and cannot allege that the purported trust was ever funded or ever held title to any property of Sydna’s. 26 Consequently, even if Petitioners’ substantive allegations of misfeasance and breach of 27 | duty had merit, any of Sydna’s property involved in such claims would pass to the Konstin Family Trust under the terms of her 2009 Will -- and her prior 2006 Will. 28 -5- Solan, Park & Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 | be the subject of a challenge and the Bypass Trust of the Konstin Family Trust is fixed as 2 | to its terms and the property held in it. (Prob. Code, §§16061.7, 16061.8.) 3 Gus and Sydna were married in 1954 when Gus was 24 and Sydna was 18. (Orig. 4 | Petn., (3; Ist Amended Petn., 428 (for Sydna’s age of 70 in 2006)) All of Sydna’s property 5 | at her death in 2009 was community property acquired during the course of her long-term 6 | marriage to Gus. (1st Amended Petn., {{]2, 26; Orig. Petn., 49] 3, 22-24) 7 Gus is the surviving settlor of the Konstin Family Trust and Sydna’s surviving 8 | spouse. (Orig. Petn., 420) As the surviving grantor, Gus is the sole beneficiary of the 9 } Survivor’s Trust of the Konstin Family Trust. (Orig. Petn., Exh. A, Art. Eight) Gus can 10 | amend the Survivor’s Trust and change its beneficiaries. (1st Amended Petn., ]67e; Orig. 11 | Petn., Exh. A, Art. Eight) 12 As to the Mazatlan property, Petitioners allege that Sydna owned undeveloped real 13 | properties in Mazatlan that she gifted to her four children on March 22, 2005. (Ist 14 | Amended Petn., 498, 74) One property was a beach-front property that she had put on the 15 | market and for which she had received a purchase inquiry after the gift to her children. 16 | (Orig. Petn., 932) At Sydna’s request, Petitioners each executed a power of attorney 17 | appointing John to deal with the Mazatlan properties on their behalf, including the 18 | authority to sell them on their behalf. (1st Amended Petn., 176; Orig. Petn. 933) The 19 | power of attorney was executed for the purpose of selling the property. (1st Amended 20 | Petn., 420) Acting under the power of attorney, John sold the beachfront Mazatlan 21 | property on September 14, 2006, for more than $1.7 million. (1st Amended Petn., 777; 22 |) Orig. Petn. 433) 23 According to Petitioners, John transferred the sale proceeds to an account in his 24 | and Sydna’s names and never accounted for the sale proceeds or put the proceeds in their 25 | names. (Ist Amended Petn., {99, 20, 78, 144) Petitioners allege in the First Amended 26 | Petition that they are the rightful owners of shares in those proceeds, (1st Amended Petn., 27 | 411, 20, 94) They asserted this claim for the first time in the First Amended Petition on 28 | March 5, 2012. -6- Sotan, Park & Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 DISCUSSION 2 Each of the causes of action alleged by Petitioners depends on whether they have 3 | standing as Sydna’s successors in interest under Code of Civil Procedure section 377.11 or 4 | as “interested persons” under Probate Code section 48. (See Ist Amended Petn., {§19, 5 | 115.) However, Petitioners fail to allege any facts that, if true, would establish their 6 | claimed status and standing. Instead, Petitioners rely only on the assertion of legal 7 | conclusions unsupported by the necessary predicate facts. 8 As explained below, Petitioners lack standing even under the broad scope afforded 9 | for elder abuse claims under Welfare and Institutions Code section 15610.30. The inability 10 | to allege facts establishing a right in themselves under that cause of action necessarily 11 | precludes their ability to claim standing to assert their other causes of action that would 12 | have belonged to Sydna if they were valid. Those causes of action depend on the same 13 | tests for standing under the Code of Civil Procedure and Probate Code that Petitioners fail 14 | to meet in claiming standing to allege elder abuse. 15 The only claim asserted by Petitioners that does not attempt to assert Sydna’s rights 16 | is their alleged expectation of receiving the proceeds of the sale of the Mazatlan property. 17 | Petitioners interweave this claim into the first, third and fourth causes of action of the First 18 | Amended Petition. This claimed injury was not alleged in the original Petition and so does 19 | not benefit from the “relation back” rule; for statute of limitations purposes the action on 20 | this claim was commenced with the filing of the First Amended Petition on March 5, 21 | 2012. Inasmuch as Petitioners claim injury from not receiving the expected proceeds of a 22 | sale that occurred on September 14, 2006, a reasonably prudent person would have 23 | become suspicious of the alleged injury long before the March 5, 2009, cut-off date for the 24 | three-year statute of limitations of Code of Civil Procedure section 338, subdivision (d). 25 Accordingly, each asserted cause of action in the First Amended Petition fails to 26 } state facts sufficient to state a cause of action in Petitioners. 27 28 -7- Solan, Park & Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 | Petitioners Lack Standing To Bring An Elder Abuse Claim Or Another Other Cause Of 2 Action That Belonged To Sydna 3 In order to assert a claim for financial elder abuse under Welfare and Institutions 4 | Code section 15610.30, Petitioners must have standing to assert a cause of action that, 5 | were it true, would have belonged to Sydna prior to her death in 2009. To have standing, 6 | Petitioners must allege facts that show they are either: 7 (A) Intestate heirs whose interest is affected by the cause of action; 8 (B) Sydna’s successor in interest, as defined in Code of Civil Procedure section 9 377.11; or 10 (C) An “interested person” as defined in Probate Code section 48. 11 (Welf. & Inst. Code, § 1567.3, subds. (d)(1)(A). (B), (C), and (d)(2).) 12 | As discussed below, Petitioners have not asserted facts sufficient to satisfy any of these 13 | standing requirements and are incapable of doing so. Sydna’s surviving spouse, Gus, is the 14 | only person who potentially or properly has the requisite standing for such claims. In the 15 | wake of Respondent Bomar’s earlier successful motion for judgment on the pleadings on 16 | this same issue, Petitioners have attempted to obscure their lack of standing with 17 | conclusory allegations and vague assertions concerning an invalid 2009 Will, unidentified 18 | “non-trust property,” and hypothetical tax issues. (1st Amended Petn., 4 19.) None of these 19 | assertions, even under the lenient standards of a demurrer, establish that Petitioners have 20 || standing to prosecute this cause of action. 21 First, there is no intestate estate for Sydna. The First Amended Petition alleges 22 | Sydna’s 2009 Will is invalid, but conveniently omits any mention of Sydna’s prior Wills, 23 | each of which also were pour-over Wills that made the Konstin Family Trust the primary 24 | vehicle for fulfilling her estate plan. That omission in the First Amended Petition is 25 | corrected for purposes of demurrer by the original Petition’s allegation that Sydna 26 | executed the 2006 Will attached to the original Petition as Exhibit G-3. (Orig. Petn., 953.) 27 | That 2006 Will, like Sydna’s 2009 Will, gives all of her estate to the Konstin Family Trust. 28 | (Orig. Petn., Exh. G-3.) Consequently, under the doctrine of dependent relative revocation -8- Solan, Park & Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 | (see Estate of Anderson (1997) 56 Cal.App.4th 235, 242-243), Sydna’s 2006 Will would 2] maintain her intention to make the Konstin Family Trust the beneficiary of her estate if 3 | her 2009 Will was not valid. 4 Further, even if there were no prior Wills there still would be no basis for finding Petitioners are intestate heirs to Sydna’s estate. As Sydna’s surviving spouse, Gus would succeed to Sydna’s estate and causes of action, if any, pursuant to Probate Code sections 5 6 71 6401 and 6402. Petitioners do not allege that Sydna died possessed of any separate 8 | property or quasi-community property. Indeed, all of Sydna’s property at her death was 9 | community property acquired during the course of her long-term marriage to Gus. (Ist 0 | Amended Petn., §f 2, 26; Orig. Petn., {ff 3, 22-24. ll Gus also stands in the way of Petitioners’ qualifying as Sydna’s successor in 12 | interest under Code of Civil Procedure section 377.11. Under that section, standing as a 13 | decedent's “successor in interest” requires facts to show the party is a “beneficiary of the 14 | decedent’s estate or other successor in interest who succeeds ... to a particular item of the 15 | property that is the subject of a cause of action.” 16 Under Code of Civil Procedure section 377.10, the “beneficiary of a decedent’s 17 || estate” means: (a) If the decedent died leaving a will, the sole beneficiary or all of the 18 beneficiaries who succeed to a cause of action, or to a particular item of property 19 that is the subject of a cause of action, under the decedent’s will 20 (b) If the decedent died without leaving a will, the sole person or all of the persons 1 who succeed to a cause of action, or to a particular item of property that is the subject of cause of action, under Sections 6401 or 6402 of the Probate Code .... 22 n Here again, as Respondent Bomar correctly stated in his successful challenge to the 2 original Petition, the beneficiary of Sydna’s estate is the Konstin Family Trust. Any 25 3 The only property referred to in the First Amended Petition as having been Sydna’s 26 separate property is the Mazatlan property in Mexico. (See, ¢.g., Ist Amended Petn., 74) 27 | However, the First Amended Petition also alleges that “on March 22, 2005, Sydna gifted the Mazatlan properties to her four children.” (/d., at 75) Consequently, according to 28 | Petitioners, when Sydna died in 2009 she had no separate property. -9- Solan, Park & Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 | property in, or added to, Sydna’s estate would be held by the Konstin Family Trust. 2 | Petitioners fail to allege any material facts that would support a different conclusion. 3 Sydna’s Wills directed that all of her estate be poured-over into the Konstin Family 4 | Trust. Under Sections 5.01, 7.01 and 8.01 of the Konstin Family Trust, all of Sydna’s 5 || interest in her property would be transferred to the Survivor’s Trust. Gus is the sole beneficiary of the Survivor’s Trust and can amend the Survivor’s Trust and change the 6 7 | beneficiaries during his lifetime. Thus, Petitioners cannot amend the First Amended 8 | Petition in order to allege they would benefit from any of the unidentified “non-trust 9 property.” 10 Even if all of Sydna’s Wills were ignored, then Gus would succeed to Sydna’s 11 | property as her surviving spouse under Probate Code section 6401, subdivision (a). That 12 | provision passes the one-half of community property that belonged to a decedent to the 13 | surviving spouse. Inasmuch as all of Sydna’s property at her death was community 14 } property, all such property would have passed to Gus under the pertinent Probate Code 15 | provision if Sydna had left no effective Will. If that were the case, Gus would be the only 16 | person who qualifies as Sydna’s successor in interest under Welfare and Institutions Code 17 | section 1567.3, subds. (d)(1)(B). (See Parsons v. Tickner (1995) 31 Cal-App.4th 1513, 18 | 1524.) Consequently, Petitioners cannot claim standing on that basis. 19 Petitioners’ final basis for standing depends on qualifying as an “[a]n interested 20 |) person, as defined in Section 48 of the Probate Code....” (Welf. & Inst. Code, § 15657.3, 21 | subd. (d)(1)(C).) As pertinent here, Probate Code section 48 states: “(a) Subject to 22 | subdivision (b), ‘interested person’ includes any of the following: [] (1) An heir, devisee, 23 | child, spouse, creditor, beneficiary, and any other person having a property right in or 24 | claim against a trust estate or the estate of the decedent which may be affected by the 25 | proceeding .... (b) The meaning of ‘interested person’ as it relates to particular persons 26 | may vary from time to time and shall be determined according to the particular purposes 27 | of, and matter involved in, any proceeding.” -10- Solan, Park & Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 This seemingly broad standing provision nevertheless incorporates a stringent 2 | qualification—any person claiming to have standing under Probate Code section 48 must 3 | have a “property right in or claim against a trust or the estate of a decedent which may be 4 | affected by the proceeding.” (Lickter v. Lickter, supra, 189 Cal.App.4th at p. 728.) As 5 | stated by the court in Lickter: “Applying this definition of an ‘interested person’ to an 6 | elder abuse action through subdivision (d)(1)(C) of Welfare and Institutions Code section 7 | 15657.3, it follows that to pursue such an action as a ‘beneficiary’ of the elder’s trust, the 8 | beneficiary must have ‘a property right in or claim against [the] trust estate ... which may 9 | be affected by the’ elder abuse action.” (Lickter v. Lickter, supra, 189 Cal.App.4th at p. 10 | 728.) The same necessarily holds for each cause of action Petitioners attempt to assert on 11 | the basis that they are beneficiaries of Konstin Family Trust. 12 Petitioners have no interest in the Konstin Family Trust that would be impaired or 13 | improved by their elder abuse claims or their other claims. Regardless of the merit—or 14 | lack thereof—in their causes of action, Petitioners will acquire neither additional property 15 } nor any increased interest in the Konstin Family Trust than they otherwise would receive. 16 | Accordingly, they lack any standing to assert such causes of action. \7 Petitioners are beneficiaries only under the Bypass Trust of the Konstin Family 18 | Trust. The Bypass Trust became irrevocable upon Sydna’s death. (1st Amended Petn., 19 | 416) Petitioners received the statutory Notification by Trustee under Probate Code section 20 | 16061.7 dated September 3, 2009. (Orig. Petn., 415 and Exh. C thereto) No action to 21 | contest the Konstin Family Trust can now be initiated. (Prob. Code, §§ 16061.7, 16061.8.) 22 | Asa result, the Bypass Trust of the Konstin Family Trust is fixed as to its terms and as to 23 | the property held in it. Petitioners’ claims concerning properties in which Sydna once held 24 | an interest cannot result in the addition of those properties to the Bypass Trust so as to 25 | benefit Petitioners. In short, they have no stake in the claims they attempt to press in 26 | Sydna’s stead. 27 None of these factual deficiencies in the First Amended Petition can be altered by 28 | further amendment. The same lack of standing that was apparent on the face of the -ll- Solan, Park & Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 | original Petition, and which constituted the grounds for this Court’s grant of Respondent 2 | Bomar’s motion for judgment on that pleading, continues in the First Amended Petition. 3 | Petitioners cannot cure these fundamental factual defects so as to establish their standing. 4 Therefore, the Court should sustain this demurrer without leave to amend as to the 5 | second cause of action for elder abuse. That cause of action asserts only a claim for which 6 | Petitioners are not the real parties in interest because they are neither successors in interest 7 | under Code of Civil Procedure section 377.11 nor interested persons under Probate Code 8 | section 48. The same defect affects each of the causes of action asserted by Petitioners. 9 | As discussed below, the late addition of a claim to proceeds of the Mazatlan property sale, 10 | woven into the three other causes of action of the First Amended Petition, fails for the 11 | additional reason that the claim is untimely. 12 13 The Claim To The Mazatlan Property Sale Proceeds Is Time-Barred 14 Petitioners state that Sydna gifted the Mazatlan property to them in March 2005, 15 | and that they gave John a power of attorney to deal with the property on their behalf. (Ist 16 | Amended Petn., §75-76) They executed the power of attorney for the purpose of selling 17 | the property. (1st Amended Petn., 20) They allege that John, acting under the power of 18 | attorney, sold the property on September 14, 2006, for over $1.7 million. (1st Amended 19 | Petn., 477) They also assert that John never accounted to them for the sale proceeds or put 20 || the sale proceeds in an account under their names, although they claim to be the rightful 21 | owners of shares of those proceeds. (1st Amended Petn., 499, 11, 20, 78, 94, 144) 22 The original Petition in this action contains no allegation that Petitioners were 23 | entitled in their own right to a share of the Mazatlan property sale proceeds. The original 24 | Petition did not allege that John deprived them of monies due them from the sale. (See 25 | Orig. Petn., §¥ 32-33) Consequently, the original Petition contained no allegation of injury 26 }) to Petitioners with respect to the Mazatlan property sale. 27 Now, in the First Amended Petition, the Petitioners allege that they were 28 | fraudulently deprived of their share in the Mazatlan property sale proceeds by reason of Solan, Park & 72: Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 | breaches of trust and fiduciary duty. Such claims, which sound in fraud, are subject to the three-year statute of limitations for fraud. As the court stated in City of Vista v. Robert Thomas Securities, Inc. (200) 84 Cal.App.4th 882, 889: “The statute of limitations that applies to an action is governed by the gravamen of the complaint, not the cause of action pled. [Citation.] The gravamen of [plaintiff's] complaint is that [defendant’s] acts constituted actual or constructive fraud. The applicable statute of limitations for fraud is ya aA WF YW HD three years, (Code Civ. Proc. § 338, subd. (d).)” This statutory provision applies as well to 8 | actions seeking the equitable remedy of imposition of a constructive trust. (Douglas v. 9 | Douglas (1951) 103 Cal.App.3d 29, 32.) Under that provision, the cause of action must be 10 } brought within three years after accrual, which occurs upon discovery of the facts 11 | constituting the fraud. 12 Actual discovery is not required because the discovery rule is not intended to 13 | encourage dilatory tactics. A party is charged with presumptive knowledge of an injury 14 | when they have information of circumstances to put them on inquiry or the opportunity to 15 | obtain knowledge from sources open to their investigation. (Fox v. Ethicon Endo-Surgery, 16 | Inc., supra, 35 Cal.4th 797 [27 Cal.Rptr.3d at p. 668].) While a fiduciary relationship that 17 } causes a party to rely on the fiduciary may relax the duty to inquire, discovery will be 18 } imputed—and the cause of action will accrue—when the party becomes aware of facts 19 | that would make a reasonably prudent persons suspicious. (E-Fab, Inc. v. Accountants, 20 | Inc. Services, supra, 153 Cal.App.4th at p. 1319.) 21 Here, Petitioners have alleged that Sydna received a purchase inquiry for the 22 || Mazatlan property. (Orig, Petn., {{31-32) They stated that prior to the sale of the property, 23 | they gave John a power of attorney empowering him to sell the property on their behalf at 24 | Sydna’s request. (Orig. Petn., 33) The power of attorney was executed for the purpose of 25 | selling the property, which they allege that John did on September 14, 2006, for 26 | approximately $1.7 million. (1st Amended Petn., (20, 77) In the First Amended Petition 27 | they allege that John never accounted to them for the proceeds of the sale and never put -13- Solan, Park & Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 || the proceeds in their name, although they claim to be the rightful owners of a share of 2 | those proceeds. (1st Amended Petn., 499, 11, 20, 78, 94, 144) 3 The First Amended Petition was filed on March 5, 2012, which sets the statutory 4 | period boundary at March 5, 2009. If Petitioners became aware of facts that would make a 5 | reasonably prudent persons suspicious of John’s alleged handling of the sale proceeds 6 | before that date, their action is time-barred. The power of attorney was executed in 2006 7 | at Sydna’s request and the sale of the property followed on September 14, 2006. There 8 | can be no question but that a reasonably prudent person, expecting to receive proceeds 9 | from the sale of property and having executed a power of attorney for that purpose, would 10 | become suspicious sometime before two and a half years passed without any payment. By 11 | March 5, 2009, Petitioners knew, or had reason to know, the facts of their alleged cause of 12 | action regarding the Mazatlan proceeds disposition. 13 Petitioners cannot claim the earlier filing date of the original Petition as the 14 | commencement date of this claim. An amended action commenced after the statute of 15 } limitations has run that alleges a new cause of action relates back to the original filing 16 | only if the new claim is based on the same operative facts as the original and seeks 17 | recovery from the same defendant for the same injury. (Norgart v. Upjohn Co. (1999) 21 18 | Cal.4th 383, 408-409; Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 150.) Where 19 | the amendment does not allege the same injury, i.e., it does not assert an invasion of the 20 | same primary right, then the amendment will not relate back. (Quiroz v. Seventh Avenue 21 | Center (2006) 140 Cal.App.4th 1256, 1262, 1264-1265.) 22 Petitioners claim a right to proceeds from a property sale in 2006. The passage of 23 | two and a half years without receipt of the claimed proceeds necessarily put Petitioners on 24 | inquiry notice with respect to their claims against John for those funds. The statute of 25 | limitations on Petitioners’ claims therefore commenced prior to March 5, 2009, and the -14- Solan, Park & Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION1 | cause of action they added for these claims in the First Amended Petition on March 5, 2 | 2012, are time-barred.’ 3 4 5 CONCLUSION 6 In this second attempt to allege facts that establish they have standing to assert 7 | claims in Sydna’s name, Petitioners demonstrate only that they will not be able to do so. 8 | Petitioners are beneficiaries only of the Konstin Family Trust’s Bypass Trust, which is 9 | fixed both as to its terms and the property it holds. Consequently, Petitioners have no 10 | property interest in the properties that are the subjects of their causes of action. Without a 11 | stake in the property interests of their claims, they have no standing under the Code of 12 | Civil Procedure or the Probate Code or the Welfare and Institutions Code. The only person 13 | who does have standing for such claims under the California statutes is Sydna’s surviving 14 | spouse, Gus, her successor in interest. 15 Petitioners seek to avoid this result by intertwining in the first, third and fourth 16 | causes of action their recently-added claim to the proceeds of the Mazatlan property’s sale 17 | in 2006. However, that claim is time-barred on the face of the pleadings and Petitioners 18 | cannot allege facts that would show an inability to have discovered the basis of their 19 | claims, despite reasonable diligence, during the two and a half year period following the 20 || property’s sale. 21 ‘ At the very least, the First Amended Petition fails to meet the pleading 22 requirements for reliance on the discovery rule, As the court stated in Fox v. Ethicon 23 | Endo-Surgery, Inc. supra, 35 Cal. 4th 661 [27 Cal.Rptr.3¢ at p. 668]: “In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule 25 | must specifically plead facts to show (1) the time and manner of discovery and (2) the 26 | inability to have made earlier discovery despite reasonable diligence.’ [Citation.} In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to ‘show diligence’; ‘conclusory allegations will not withstand 28 | demurrer.’ [Citation.]” 24 27 -15- Solan, Park & Robello LLP RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITIONSolan, Park & Robello LLP For the foregoing reasons, the demurrer should be sustained without leave to amend as to each cause of action of the First Amended Petition. Dated: April 4, 2012 SOLAN, PARK & ROBELLO, LLP By: § Laecfe! Ke ble Sheila K. Robello Attomeys for Trustee and Respondent John Konstin -16- RESPONDENT KONSTIN’S POINTS & AUTHORITIES FOR DEMURRER TO 1ST AMENDED PETITION