Filed 5/4/17 Denham v. Harry E. Westover & Assoc. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
BEVERLY DENHAM, as Successor
Trustee, etc.,
Plaintiff and Appellant,
v.
HARRY E. WESTOVER &
ASSOCIATES et al.,
Defendants and Respondents.
B269825
(Los Angeles County
Super. Ct. No. NC059551)
APPEAL from judgments of the Superior Court of Los Angeles County.
Michael P. Vicencia, Judge. Affirmed.
Law Offices of Phillip K. Fife and Phillip K. Fife for Plaintiff and
Appellant.
Baker, Keener & Nahra, Mitchell F. Mulbarger and Christopher K.
Mosqueda for Defendant and Respondent Harry E. Westover & Associates.
Summit LA, Tracy R. Mattie-Daub and Terry J. Kent for Defendant
and Respondent State Farm Bank, FSB.
2
Beverly Denham, in her capacity as successor trustee of The Markham
Family Trust Dated April 11, 1990 (appellant), appeals from a judgment
entered after the trial court granted summary judgment in favor of Harry E.
Westover & Associates (Westover) and State Farm Bank, FBS (State Farm)
(collectively “respondents”) on appellant’s claims against respondents for
quiet title, to invalidate a lien, and for negligent or intentional slander of
title. The trial court granted summary judgment in favor of State Farm on
the ground that State Farm was a good faith encumbrancer. The trial court
granted summary judgment in favor of Westover on the ground that
appellant’s claims against Westover were barred by the statute of limitations
under Code of Civil Procedure section 340.6, subdivision (a). We affirm the
judgment.
FACTUAL BACKGROUND1
The property at issue in this matter is commonly known as 181/185
Cameron Place, Long Beach, California 90807 (the property).
Appellant’s parents, Theodore R. Markham (Theodore) and Anna G.
Markham (Anna G.), were married. During their marriage, they acquired the
property. They had two children, appellant and her brother, Theodore R.
Markham, Jr., when Anna G. died in October 1966, the property became
Theodore’s sole and separate property.
In November 1967, Theodore married Anna Jean Federico, who then
became known as Anna J. Markham (Anna Jean). At the time of her
marriage to Theodore, Anna Jean had two children from a prior marriage:
Janice Ann Emery and Samuel Betz Federico.

1 The facts are allegations taken from the complaint and the parties’
separate statements of material fact in this matter.
3
During their marriage Theodore and Anna Jean formed The Markham
Family Trust Dated April 11, 1990 (the trust). The trust was prepared by an
attorney, Pierre E. Auw (Auw), then employed by Westover & Matthews, a
predecessor of Westover. At the time the trust was settled the property was
designated as Theodore’s separate property. The property was transferred to
the trust by a trust transfer deed dated April 11, 1990, and recorded with the
Los Angeles County Recorder on May 3, 1990. Appellant alleges that the
transfer deed was drawn and recorded by Westover, and contained the
materially false statement that Anna Jean had acquired title to the property
as Anna G. Markham, when in fact Anna Jean had not acquired any interest
in the property at that time.
Theodore died on May 12, 1995, while married to Anna Jean. Upon his
death, Anna Jean became the sole surviving trustee of the trust and
continued in that capacity until her death on January 8, 2011.
After Theodore’s death, at Anna Jean’s direction, Westover prepared a
document entitled “Affidavit – Death of Co-trustee” which falsely asserted
that the property had been at all times since its acquisition considered to be
community property of the marriage of Anna Jean and Theodore. The
document was prepared on May 31, 1995, and recorded on August 16, 1995.
Appellant alleges that Westover should have known this was false. The
property was considered the separate property of Theodore, and upon the
death of Anna Jean the property was by the terms of the trust to be
distributed to appellant and her brother.
On July 27, 1999, Anna Jean recorded a grant deed by which Anna
Jean as trustee of the trust purported to convey title of the property from the
trust to “Anna Jean Markham, a widow.”
4
Anna Jean never provided appellant or her brother notice of the trust.
Appellant was not provided with a copy of the trust until after the death of
Anna Jean, when the property management firm which had been managing
the property sent appellant a copy of the trust and started sending appellant
the rents generated by the property under a written lease.
Following Anna Jean’s death, appellant became the successor trustee of
the trust. In January 2013, appellant entered into an agreement to sell the
property to Howard Pringle and Leslie Pringle. It was then that appellant
discovered the grant deed recorded in 1999 precluded her from conveying
good and marketable title for the property to the Pringles. Appellant
engaged counsel to investigate the public records as to how Anna Jean had
handled the properties in the trust.
A deed of trust on the property executed by “Anna Jean Markham, a
widow,” as borrower, was recorded on January 30, 2003. The deed of trust
encumbered the property to secure the payment to State Farm of a
promissory note signed by Anna Jean on January 24, 2003 in the initial
principal amount of $304,700. Appellant alleges that State Farm failed to
conduct a reasonable and thorough investigation of the state of the title for
the property prior to making the loan.
At the time the loan was made, State Farm had no notice that
appellant had any claim to the property. Nor did State Farm have notice of
any improper exercise of trustee duties by Anna Jean.
PROCEDURAL HISTORY
Appellant filed her complaint on June 10, 2014. The complaint
included causes of action for quiet title and to cancel the deed of trust on the
basis that Anna Jean was not entitled to encumber the property after the
death of Theodore. The complaint further alleged that Westover negligently
5
or knowingly assisted Anna Jean in clouding title to the property, resulting
in damages to appellant.2
On July 23, 2015, Westover’s demurrer to the complaint was overruled.
The court granted Westover leave to file a motion for summary judgment. On
August 5, 2015, Westover served its motion for summary judgment based
solely on the statute of limitations found in Code of Civil Procedure section
340.6. The moving papers confirmed that Auw had worked at Westover and
was now deceased. There was no record that Auw worked on any files for
Anna Jean after the year 2000.
On August 7, 2015, State Farm served its motion for summary
judgment taking the position that it had loaned $304,700 to Anna Jean in
good faith, with no knowledge that there was any issue as to her holding
valid title to the property. State Farm also took the position that it was
protected under Probate Code section 18100, which protects a third person
dealing with a trustee or assisting a trustee in the conduct of a transaction.
State Farm’s motion for summary judgment was concurrently filed
with a request for judicial notice of many instruments executed by Anna Jean
and recorded in Los Angeles County. The recorded instruments showed that
Anna Jean had borrowed money from various lenders on the security of the
property beginning in June 1996. The initial loans were to her as the sole
surviving trustee of the trust. After the property transferred to Anna Jean in
her individual capacity, she continued to borrow money as an individual from
various lenders, culminating with the loan made to her from State Farm.

2 In addition to respondents, the complaint listed as defendants Janice
Ann Emery, Samuel Betz Federico, Howard Pringle, and Leslie Pringle.
These individuals are not parties to this appeal. Janice Ann Emery and
Samuel Betz Federico declined to assert any interest in the property and
their respective defaults were entered on November 4, 2014.
6
Each loan appeared to pay off the previous loan until the final loan by State
Farm.
Also filed concurrently with State Farm’s motion for summary
judgment was a declaration from Louis Uribe and a number of recorded
documents affecting the property.
Appellant opposed Westover’s motion for summary judgment with a
responsive separate statement of undisputed facts on October 7, 2015.
Appellant also served a declaration and request for judicial notice of various
documents, including marriage certificates of Theodore and Anna G.
Markham, death certificates, and copies of the two recorded deeds by which
Theodore and Anna G. Markham first acquired the property in 1956.
Appellant also served her response to State Farm’s separate statement
of undisputed facts on October 7, 2015. With that she concurrently filed a
request for judicial notice with attached documents showing that State Farm
had engaged Chicago Title Insurance Company in connection with the
January 2003 loan to Anna Jean, and that Chicago Title Insurance Company
had searched the title history for the property. The search revealed that the
subject property had been free and clear of loans when Theodore died in May
1995.
On October 15, 2015, State Farm objected to appellant’s request for
judicial notice and its reply to appellant’s opposition to the motion for
summary judgment. Thereafter, Westover gave notice that it was joining in
the objections of State Farm to appellant’s request for judicial notice.
Both summary judgment motions were heard on October 22, 2015. The
trial court indicated it would sustain State Farm’s objections to appellant’s
evidence, indicating that the core issue was whether State Farm was on
constructive notice that Anna Jean had no legal interest in the subject
7
property when she executed the January 2003 deed of trust which appellant
sought to invalidate. The court noted, “the flaw in [appellant’s] case is that
no public records . . . would have revealed the terms of the trust.” However,
the court noted, even if State Farm had analyzed the trust transaction, it
could rely on Probate Code section 18100 and would be entitled to the
protections of that statute.
As to Westover, the court found that any alleged negligence or
intentional wrongdoing was carried out in connection with professional
services, and the one-year period of limitations from discovery of the alleged
negligence or wrongdoing found in Code of Civil Procedure section 340.6
applied. Because appellant discovered the alleged wrongdoing in January
2013, and did not file her lawsuit until June 2014, it was time-barred. The
trial court found that appellant had not met the fraud exception to that
statute.
The trial court issued an order dated November 20, 2015, granting
State Farm’s motion for summary judgment on the ground that State Farm
was a good faith encumbrancer having had no way of knowing the terms of
the trust. All 30 of State Farm’s objections to appellant’s request for judicial
notice were sustained. On December 2, 2015, final judgment was entered in
favor of State Farm.
The trial court also granted Westover’s motion for summary judgment.
Final judgment in Westover’s favor was also entered on December 2, 2015.
Appellant filed her notice of appeal on January 28, 2016.
DISCUSSION
I. Standards of review
“On appeal after a motion for summary judgment has been granted, we
review the record de novo, considering all the evidence set forth in the
8
moving and opposition papers except that to which objections have been
made and sustained. [Citation.]” (Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 334.)
Evidentiary rulings on summary judgment are reviewed for abuse of
discretion. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 192,
fn. 15.) Under this standard, we affirm the ruling unless the trial court
demonstrated a manifest abuse of discretion, exceeding the bounds of reason.
(In re Marriage of Chakko (2004) 115 Cal.App.4th 104, 108.)
II. Evidentiary rulings
Appellant challenges the trial court’s rulings sustaining each of
respondent State Farm’s objections to the documents referenced in
appellant’s request for judicial notice. Appellant argues that the court’s
“wholesale refusal” to take judicial notice of the recorded documents was
error.
A. Documents and objections
Appellant sought judicial notice of copies of the following documents:
(1) the marriage certificate of Theodore and Anna G. Markham, filed
December 28, 1932, with the Los Angeles County Recorder;
(2) the death certificate of Anna G. Markham, filed December 1, 1966,
with the Los Angeles County Recorder;
(3) the deed recorded March 22, 1956, showing that Anna G. and
Theodore Markham acquired title to the property during their marriage as
husband and wife;
(4) a deed recorded December 9, 1959, showing that Theodore and Anna
G. Markham acquired some additional portion of interest in property
adjacent to the property, probably as a result of some sort of settlement of a
boundary dispute;
9
(5) an application for building permit filed by Theodore with the
Department of Building and Safety for the City of Long Beach on August 6,
1959;
(6) a deed showing that Theodore and Anna G. Markham as husband
and wife took title to the property listed as Item 2 of Schedule B of the trust
as “commercial property” by grant deed recorded December 21, 1962, in the
records of the Los Angeles County Recorder;
(7) the marriage certificate of Theodore and Anna Jean filed November
21, 1967, with the Los Angeles County Recorder;
(8) the trust instrument settled by Theodore and Anna Jean on April
11, 1990, listing on Schedule B as the separate property of Theodore the
subject property and the commercial property;
(9) the trust transfer deed prepared by Pierre E. Auw, notarized and
recorded on May 3, 1990, with the Los Angeles County Recorder;
(10) the document entitled “Affidavit – Death of Co-Trustee” prepared
by Auw and recorded on August 16, 1995, in which Anna Jean swore under
penalty of perjury that the subject property had been “at all times since its
acquisition considered to be community property. . .” of her marriage to
Theodore;
(11) A trust transfer deed affecting the commercial property prepared,
notarized and recorded by Auw on May 3, 1990, in the records of the
Los Angeles County Recorder;
(12) a document entitled “Affidavit – Death of Co-Trustee” recorded
August 17, 1995, in which Anna Jean swore under penalty of perjury that the
commercial property had been at all times since its acquisition considered to
be community property, bearing the initials of Auw;
10
(13) pages from the Parker’s Directory of Attorneys showing that Auw
was affiliated professionally with Westover from and including 1990 through
2004;
(14) death certificate registration No. D20090019019 showing that Auw
died on April 21, 2009;
(15) a deed of trust executed September 24, 1979, by Theodore alone as
the trustor, in which he is described as “a married man who acquired title as
a widower;”
(16) a full reconveyance recorded February 12, 1985, confirming that
the encumbrance placed on the property as the deed of trust recorded October
22, 1979, had been fully paid; and
(17) a grant deed recorded as Document No. 99 1635374 in the records
of the Los Angeles County Recorder in which Anna Jean as trustee of the
trust purported to grant to “Anna Jean Markham, a widow,” title for the
subject property.
State Farm’s objection to each document listed the following objections,
with little variation: not material; lacks personal knowledge (Evid. Code,
§ 702, subd. (a)); lacks foundation (Evid. Code, § 403, subd. (a)); not relevant
(Evid. Code, § 350); hearsay (Evid. Code, § 1200); attorney arguments are not
evidence (Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819, 843);
and judicial notice does not prove truth of contents of public documents (Love
v. Wolf (1964) 226 Cal.App.2d 378, 403). In addition, State Farm objected to
the admission of the trust instrument on the ground that such instrument “is
not capable of being judicially noticed as it is a private document. The act of
filing a document with the Court does not permit a Court to later take
judicial notice of the truth of facts asserted in that document. (Soskinsky v.
Grant (1992) 6 Cal.App.4th 1548, 1568.)”
11
B. The trial court’s ruling
At the October 22, 2015 hearing the trial court indicated that it would
sustain State Farm’s objections to appellant’s request for judicial notice. The
trial court did not specify which ground or grounds formed the basis for its
decision, nor did appellant’s counsel request any clarification.
In its written order, filed November 20, 2015, the trial court sustained
each objection that State Farm raised to appellant’s request for judicial
notice, without elaborating as to the precise ground on which each objection
was sustained.3
C. Appellant has failed to establish an abuse of discretion
Appellant does not address the validity of the specific objections that
were raised by State Farm and sustained by the trial court. Instead,
appellant argues that courts have the authority to take judicial notice of
recorded documents, and the refusal to do so in this case was error because
the documents establish that State Farm’s lien is void. Appellant argues,
“[i]t was error for the Court to refuse to take judicial notice of the relevant

3 Appellant makes no separate argument on appeal regarding these
evidentiary rulings as they relate to the request for judicial notice filed in
connection with appellant’s opposition to Westover’s motion for summary
judgment. As set forth above, Westover joined in the objections filed by State
Farm. Appellant asserts that the request for judicial notice filed in
opposition to Westover’s summary judgment motion was similar, but not
identical to, the request for judicial notice filed in opposition to the motion of
State Farm. However, appellant does not argue that any differences between
the two requests for judicial notice are legally significant for the purpose of
this appeal. Therefore, any argument concerning the evidentiary rulings as
they related to Westover’s motion, as opposed to State Farm’s motion, is
waived. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939,
956 [“‘“When an appellant fails to raise a point, or asserts it but fails to
support it with reasoned argument and citations to authority, we treat the
point as waived”’”].)
12
excerpts of the Trust instrument which established that Anna Jean had no
right to deed trust property to herself that Theodore owned as his separate
property when it had been transferred to the Trust.”
Appellant’s analysis is insufficient to meet her burden on appeal, as she
must establish both error and prejudice. (Morgan v. Wet Seal, Inc. (2012) 210
Cal.App.4th 1341, 1369.) We cannot satisfy this burden for her. (Ibid. [“‘One
cannot simply say the court erred, and leave it up to the appellate court to
figure out why’”].) Appellant has failed to furnish any relevant legal
argument as to why the trial court erred. Appellant has failed to address any
of the specific objections raised by State Farm. Appellant’s argument that
the referenced documents establish Anna Jean’s wrongdoing does not
adequately address the admissibility of those documents as evidence.4
Therefore, we find no abuse of discretion.5
III. Validity of deed
Appellant argues that the deeds by which Anna Jean as the surviving
sole trustee of the trust deeded the property from herself as trustee to herself
as an individual were void. The transfer was against the interests of
appellant and her brother, the remainder beneficiaries designated in the
trust instrument. Thus, appellant argues, the transfer was a violation of
Anna Jean’s duties as trustee and therefore void.

4 As appellant has noted, the trial court appeared to accept appellant’s
position that Anna Jean had acted improperly and was not the same person
as Anna G. Markham.
5 Appellant notes that the trial court sustained the objections at the
conclusion of oral argument and without entertaining any argument.
Appellant makes no specific legal argument that the trial court abused its
discretion in not specifically inviting argument on this topic. Therefore, we
consider this issue to be waived. (Cahill v. San Diego Gas & Electric Co.,
supra, 194 Cal.App.4th at p. 956.)
13
A. The 1999 deed and trust instrument are not in evidence
Appellant has failed to show the deed is invalid. First, the 1999 deed
by which Anna Jean took title to the property is not part of the record. Nor is
the trust instrument which purportedly designated the property at issue as
the community property of Theodore and Anna G. Markham. State Farm’s
objections to admission of these documents on numerous grounds were
sustained, and appellant has made no effective legal argument that the
evidentiary rulings were an abuse of the trial court’s discretion.
B. Even if Anna Jean violated her duties as trustee, the
transaction was merely voidable, not void
Probate Code section 16004, which governs a trustee’s duties to avoid
self-dealing, provides: “The trustee has a duty not to use or deal with trust
property for the trustee’s own profit or for any other purpose unconnected
with the trust, nor to take part in any transaction in which the trustee has an
interest adverse to the beneficiary.” (Prob. Code, § 16004, subd. (a).)
Even if Anna Jean violated the law prohibiting a trustee from dealing
with trust property for her own profit, the transaction would be voidable at
the election of the beneficiary, not void, as appellant suggests. Where such a
transaction is voidable, not void, the beneficiary may rescind the transaction
but must restore the consideration to the third party. (Fair v. Bakhtiari
(2011) 195 Cal.App.4th 1135, 1155 [where agreement violated an attorney’s
fiduciary duties within the meaning of Probate Code section 16004,
agreement was voidable]; see also BGJ Associates v. Wilson (2003) 113
Cal.App.4th 1217, 1229 (BGJ Associates); Civ. Code, § 1691, subd. (b)
[rescinding party must “[r]estore to the other party everything of value which
he has received from him under the contract or offer to restore the same upon
condition that the other party do likewise”].)
14
While the recent case law cited above discusses Probate Code section
16004 in the context of the attorney-client relationship, it relies on wellestablished
legal principles. (See BGJ Associates, supra, 113 Cal.App.4th at
p. 1229, citing Estate of Berry (1925) 195 Cal. 354, 362 [“‘[I]f a contract is
entered into between a trustee and beneficiary . . . the latter is entitled to
rescind the contract, subject to the limitations imposed by the law governing
the application of this remedy’”]; Phillips v. Sanger Lumber Co. (1900) 130
Cal. 431, 433 [where trustee violates fiduciary obligations by entering
contract, such action “do[es] not make the contract void, but voidable only at
the option of the beneficiary, who may either affirm or repudiate it”].)
Appellant has directed us to case law pre-dating the enactment of
Probate Code section 16004 involving trustees who wrongfully dealt with
trust property for their own benefit. These cases agree that, where a trustee
deals with trust property for the trustee’s own benefit, such transactions are
voidable at the election of the beneficiary. (Wickersham v. Crittenden (1892)
93 Cal. 17, 29 [where trustee has dealings in the trust property, court will set
the transaction aside “at the mere option of the cestui que trust”]; see also
Estate of Howard (1955) 133 Cal.App.2d 535, 541 [“‘a guardian, in purchasing
or otherwise acquiring the property of his ward, violates the duty imposed by
the fiduciary character of his position. Such a transaction, whether made
directly to the guardian or through another, is voidable at the suit of any
proper party in interest’”].)
If a transaction is void, it has no effect on a subsequent bona fide
purchaser. However, where a transaction is merely voidable, as was the
transaction at issue here, “it may have been subject to cancellation and
rescission as against the trustee, but could be relied upon by a subsequent
bona fide purchaser for value.” (Schiavon v. Arnaudo Brothers (2000) 84
15
Cal.App.4th 374, 378; see also Triple A Management Co. v. Frisone (1999) 69
Cal.App.4th 520, 530 (Triple A) [“‘A good faith encumbrancer for value
. . . takes its interest in the real property free and clear of unrecorded
interests’”].)
C. State Farm was a bona fide encumbrancer for value
Assuming the 1999 deed was voidable because the terms of the trust
did not permit Anna Jean to deed the property to herself as an individual,
State Farm prevails as a matter of law because it was a bona fide
encumbrancer for value. (Triple A, supra, 69 Cal.App.4th at p. 530.)
State Farm established that it was a bona fide encumbrancer for
value.6 To establish its status as a bona fide encumbrancer, State Farm was
required to show payment of value, in good faith, without actual or
constructive notice of another’s rights. (Gates Rubber Co. v. Ulman (1989)
214 Cal.App.3d 356, 364.) Thus, as the trial court noted, the core issue was
whether State Farm had constructive notice that Anna Jean had no legal
interest in the property. Because no public records revealed the terms of the
trust, State Farm had no way of knowing the terms of the trust. State Farm
was entitled to rely on the validity of the recorded deed.7 (Triple A, supra, 69
Cal.App.4th at p. 530 [“[I]t clearly is the law that, in the absence of
conflicting knowledge, a good faith encumbrancer is entitled to rely on the
recorded chain of title”].) Because appellant produced no evidence suggesting

6 Bona fide encumbrancers are treated the same as bona fide purchasers,
using the same legal principles. (Caito v. United California Bank (1978) 20
Cal.3d 694, 702.)
7 Pursuant to Civil Code section 1091 and Code of Civil Procedure section
1971, in order to be valid a deed must be written and subscribed by the party
transferring the subject property. There is no dispute that the 1999 deed met
those requirements.
16
that State Farm was aware of any flaw in Anna Jean’s title to the property,
State Farm prevails as a matter of law on appellant’s claim for quiet title and
to invalidate the lien.
IV. Probate Code section 18100
As an alternative ground for its ruling in favor of State Farm, the trial
court noted that even if State Farm “had to get down into the trust
transactions,” it could rely on Probate Code section 18100 and would be
entitled to the protections of that statute.
Probate Code section 18100 provides:
“With respect to a third person dealing with a trustee or
assisting a trustee in the conduct of a transaction, if the third
person acts in good faith and for a valuable consideration and
without actual knowledge that the trustee is exceeding the
trustee’s powers or improperly exercising them:
“(a) The third person is not bound to inquire whether the
trustee has power to act or is properly exercising a power and
may assume without inquiry the existence of a trust power and
its proper exercise.
“(b) The third person is fully protected in dealing with or
assisting the trustee just as if the trustee has and is properly
exercising the power the trustee purports to exercise.”
Appellant argues on appeal that Probate Code section 18100 affords no
protection to State Farm because at the time of the transaction, appellant
was acting as an individual, not as a trustee. Thus, appellant argues, the
statute had no application under the facts of this case.
A determination of whether Probate Code section 18100 applies to facts
before us is not necessary for State Farm to prevail as a matter of law. The
trial court simply noted that if, as appellant insists, State Farm were
required to delve into the validity of the 1999 deed, it would have been
17
entitled to rely on Probate Code section 18100 and assume that Anna Jean
was acting within her power as trustee in deeding the property to herself as
an individual.
However, as set forth above, State Farm was not required to determine
the validity of the 1999 deed. It was valid on its face, and State Farm was
entitled to rely on it. Therefore, we need not discuss Probate Code section
18100 further.
V. Code of Civil Procedure section 340.6
Appellant’s final argument involves her claim for negligent or
intentional slander of title arising out of allegations of misconduct against
Westover occurring in 1999, over 16 years ago. The trial court determined
that Westover was entitled to summary judgment on this issue due to the
one-year statute of limitations for claims other than actual fraud arising out
of the performance of professional services. (Code Civ. Proc., § 340.6, subd.
(a).)8
A. Appellant’s claim is barred by the statute of limitations
The facts leading to appellant’s discovery of the claim begin after Anna
Jean’s death in January 2011 when appellant first became aware of the
existence of the trust. In January 2013, appellant entered into an agreement
to sell the property to the Pringles. It was then that appellant discovered

8 Code of Civil Procedure section 340.6, subdivision (a), provides in part:
“An action against an attorney for a wrongful act or omission, other than for
actual fraud, arising in the performance of professional services shall be
commenced within one year after the plaintiff discovers, or through the use of
reasonable diligence should have discovered, the facts constituting the
wrongful act or omission, or four years from the date of the wrongful act or
omission, whichever occurs first.” The period is tolled whenever the plaintiff
is under “a legal or physical disability which restricts the plaintiff’s ability to
commence legal action.” (Code Civ. Proc., § 340.6, subd. (a)(4).)
18
that the grant deed recorded in 1999 precluded her from conveying good and
marketable title for the property to the Pringles. Appellant engaged counsel
to investigate how Anna Jean had handled the properties in the trust.
Thus, the facts as pled show that appellant discovered the wrongful act
in January 2013.9 Her lawsuit was not filed until June 2014, more than one
year after she discovered, or should have discovered, the wrongful act or
omission of Westover. It is therefore barred by Code of Civil Procedure
section 340.6, subdivision (a).
B. Appellant has not shown the fraud exception
Appellant argues that she has met the fraud exception to Code of Civil
Procedure section 340.6.
The fraud exception in Code of Civil Procedure section 340.6 applies
only “to intentional fraud, not constructive fraud resulting from negligent
misrepresentation.” (Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 69-
70.) In order to bring an intentional fraud claim against Westover, appellant
was required to plead such a claim with particularity. (Small v. Fritz
Companies, Inc. (2003) 30 Cal.4th 167, 184 [“‘In California, fraud must be

9 Appellant makes much of her allegation that “within one year last past
[she] has become informed thereby, and has come to believe, that the title of
the record for the CAMERON PROPERTY remains in the name of ‘Anna
Jean Markham, a widow.’” This allegation does not change the fact that the
statute of limitations began to run in January 2013 or shortly thereafter. In
January 2013, when she discovered that she did not have marketable title to
the property, appellant had sufficient knowledge of her claim. The statute of
limitations began to run at that time. (Code Civ. Proc., § 340.6, subd. (a).) It
was not necessary that she know every detail of the past transactions
involving the property. “A plaintiff need not be aware of the specific ‘facts’
necessary to establish the claim. . . . Once the plaintiff has a suspicion of
wrongdoing, and therefore an incentive to sue, she must decide whether to
file suit or sit on her rights.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103,
1110-1111.)
19
pled specifically; general and conclusory allegations do not suffice. . . .’ This
particularity requirement necessitates pleading facts which ‘show how, when,
where, to whom, and by what means the representations were tendered’”].)10
Appellant did not allege a claim of fraud against Westover, and
conceded this point in court on October 22, 2015. In response to the trial
court’s request that appellant “point to that part of the complaint that alleges
fraud against Westover,” appellant responded, “It doesn’t allege fraud per se.”
Nonetheless, appellant argues that a jury could infer intentional fraud
from the evidence before the court. Appellant argues that a jury could infer
that Auw altered the language of the May 1990 trust transfer deed outside of
the presence of Theodore so that when he recorded it two weeks later it
appeared to indicate that Anna Jean had been a co-owner of the subject
property for the same length of time as Theodore. Further, appellant argues,
by setting up the recording instructions so that the trust transfer deed as
altered and recorded would come back from the recorder not to Theodore but
to Auw, Theodore would not see the deed as was actually recorded. In
addition, three weeks after Theodore’s death, Auw prepared the false
affidavit claiming the subject property had been, from the time of its
acquisition, community property of the marriage of Anna Jean and Theodore.
The required inference would be that Auw, and thus Westover, knew that
this statement was false.

10 Quick v. Pearson (2010) 186 Cal.App.4th 371, cited by appellant, does
not suggest otherwise. The matter was decided on demurrer, and the court
was required to accept the allegations as true. The second amended
complaint alleged that Quick was a beneficiary of a trust and was unaware of
the existence of the trust, that a trustee failed to inform him of the existence
of the trust and also instructed the other beneficiaries not to inform him of
the existence of the trust. These allegations adequately stated a cause of
action for breach of trust by a trustee. (Id. at p. 380.)
20
This court may only determine the existence of triable issues of fact
based on admissible evidence and reasonable inferences drawn therefrom.
(Code Civ. Proc., § 437c, subd. (c).) Appellant has not set forth any
admissible evidence supporting her claim of intentional fraud. Even if the
trust and transfer deeds had been admitted into evidence, there is simply no
evidence suggesting that Auw had any fraudulent intent or acted to deceive
anyone. In the fraudulent conveyance context, “‘[p]roof of fraudulent intent
often consists of “inferences from the circumstances surrounding the
transaction . . . .” [Citation.]’ [Citation.]’” (Annod Corp. v. Hamilton &
Samuels (2002) 100 Cal.App.4th 1286, 1298). Such circumstances include
“‘secrecy or concealment . . . [or] the relationship of the parties.’ [Citation.]”
(Eddy v. Temkin (1985) 167 Cal.App.3d 1115, 1122.) Appellant sets forth no
specific evidence suggesting that Auw acted with fraudulent intent. There is
no evidence that he acted with secrecy, intentionally misled anyone, or had
anything other than a professional relationship with Anna Jean. Appellant
presents nothing but speculation. “Speculation, however, is not evidence.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 864.)11
Because appellant has not set forth a claim for intentional fraud
against Westover, appellant’s claim does not fit within the fraud exception to
Code of Civil Procedure section 340.6.
C. Appellant’s claim against Westover arose out of the
performance of professional services
Appellant next argues that Code of Civil Procedure section 340.6 does
not apply because Auw was not engaged in professional attorney services at
the time of the acts in question. Appellant cites Lee v. Hanley (2015) 61

11 Given the similarity of the names of Theodore’s two wives, it seems
more likely that Auw made an honest mistake and simply confused the
names of Anna G. and Anna Jean.
21
Cal.4th 1225 (Lee) for the proposition that “Section 340.6(a) . . . does not bar a
claim arising from an attorney’s performance of services that are not
‘professional services,’ meaning ‘services performed by an attorney which can
be judged against the skill, prudence and diligence commonly possessed by
other attorneys.’ [Citation.]” (Lee, supra, at p. 1237.) In Lee, an individual’s
claim for conversion against her former attorney was not barred by Code of
Civil Procedure section 340.6 because “conversion does not necessarily
depend on proof that Hanley violated a professional obligation.” (Lee, at p.
1240.)
Appellant argues that Auw was not acting in his capacity as a lawyer
at the time of the alleged acts, but instead was acting in his capacity as a
licensed notary public. Appellant argues that if, while acting as a notary
public, the notary public alters the deed to the benefit of one of two clients
who have conflicting interests, the act should not be subject to Code of Civil
Procedure section 340.6.
However, Code of Civil Procedure section 340.6 is not limited to an
attorney’s professional negligence in performing the tasks involved with
traditional legal work. The Lee court explained that Code of Civil Procedure
section 340.6 intentionally used broader terms, allowing the statute to apply
to any “‘wrongful act or omission, other than for actual fraud, arising in the
performance of professional services.’” (Lee, supra, 61 Cal.4th at p. 1234.)
“Thus, in enacting the final version of the bill, the Legislature intended to
establish a limitations period that would apply broadly to any claim
concerning an attorney’s violation of his or her professional obligations in the
course of providing professional services regardless of how those claims were
styled in the plaintiff’s complaint.” (Id. at p. 1235.) While Lee’s action for
conversion did not fall within the ambit of the statute, acts related to an
22
attorney’s professional services, such as “fiduciary obligations, the obligation
to perform competently, the obligation to perform the services contemplated
in a legal services contract into which an attorney has entered, and the
obligations embodied in the State Bar Rules of Professional Conduct,” do fall
within the ambit of the statute. (Id. at p. 1237.)
The services provided by Auw to Theodore and Anna Jean were
professional services. “[T]he attorney-client relationship often requires
attorneys to provide nonlegal professional services such as accounting,
bookkeeping, and holding property in trust. [Citation.]” (Lee, supra, 61
Cal.4th at p. 1237.) “In light of the Legislature’s intent that [Code of Civil
Procedure] section 340.6(a) cover more than claims for legal malpractice, the
term ‘professional services’ is best understood to include nonlegal services
governed by an attorney’s professional obligations.” (Ibid.) In this case, the
notary services that Auw provided during the course of his representation of
Theodore and Anna Jean fall within the ambit of Code of Civil Procedure
section 340.6, subdivision (a). Therefore, appellant’s claim is barred by the
one-year state of limitations set forth within that statute.
23
DISPOSITION
The judgments are affirmed. Respondents are awarded their costs of
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, Acting P. J.
ASHMANN-GERST
__________________________, J.*
GOODMAN
________________________________________________________________________
* Retired Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.