Freeman v. Lauritzen

Filed 5/5/06 Freeman v. Lauritzen CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

CHARLES L. FREEMAN, et al., H028531

Plaintiffs and Appellants, (Santa Clara County

Superior Court

v. No. 1-04 CV014710)

PETER B. LAURITZEN,

Defendant and Respondent.

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Plaintiffs Charles L. Freeman and Kay L. Freeman appeal from a judgment of dismissal entered after the trial court sustained a demurrer to their second amended complaint without leave to amend. The second amended complaint alleged causes of action for professional negligence, fraud, and breach of fiduciary duty against defendant Peter B. Lauritzen. We conclude that plaintiffs failed to state claims that were not barred by the statute of limitations and affirm the judgment.

I. Statement of Facts

On appeal from a judgment dismissing a complaint after a demurrer is sustained without leave to amend, we treat as true the properly pleaded factual allegations of the complaint and the facts of which judicial notice can be taken. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) Those allegations and facts are as follows:

Plaintiffs are the nephew and niece of Charles A. Freeman. Elizabeth Freeman was Mr. Freeman's wife. Defendant is the attorney who drafted Mr. Freeman's will.

In 1987, the Freemans purchased a condominium as joint tenants. In 1990, Mr. Freeman executed his will. At issue is the disposition of his interest in the condominium. Paragraph 1.4 of Mr. Freeman's will nominates defendant and Mrs. Freeman as trustees. Paragraph 2.2 refers to the condominium, and provides in relevant part: â€