Filed 8/28/17 Heath v. Heath CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

This case arises from a dispute among beneficiaries of a family trust. Plaintiff Dennis Heath appeals from a judgment for defendants after a court trial ruled his action was barred by the statute of limitations. As we understand his arguments, he contends he is entitled to assert his claims under the continuing violation or continuous accrual exception to the statute of limitations defense, or, alternatively, that the statutory period did not begin to run until his mother’s death, when he attained standing to challenge her will and trust. His contentions are meritless, so we affirm.

BACKGROUND

In 2001 Josephine Heath amended her living trust. That same year Heath’s daughter Kathleen Maiman, Dennis’s sister, filed a petition to be appointed Josephine’s conservator.[1] Following almost two years of litigation, the parties stipulated to a certified professional fiduciary as conservator of Josephine’s person and estate.

A week later, on February 11, 2003, Kathleen and Dennis filed a joint declaration “re excessive and improper [legal] fees charged to [the] Josephine F. Heath[] Estate; conflict, bias, wanton and irresponsible management of Josephine F. Heath estate funds.” They alleged their brother Gerald (Jerry) and his wife June (since deceased), with the cooperation of Carol Strohmeier, trustee under the trust as amended in 2001, isolated and confined Josephine for 15 months during which time her health was “severely neglected.” They further alleged that Jerry and June stalked and abducted Josephine in 2002 and that Strohmeier covertly diverted Josephine’s funds to a secret account, covered checks drawn on insufficient funds, issued signed blank checks for Jerry, and approved “questionable and outrageous” expenses.

In June 2005 Kathleen and Dennis filed an application with the probate court seeking a determination that filing a complaint for elder abuse, a petition for revocation of the 2001 trust amendment and related pleadings would not violate no contest provisions in Josephine’s will and trust. The proposed complaint alleged Josephine lacked testamentary capacity when she amended the trust and that she did so while Jerry and June controlled and kept her confined to their home. It further alleged that during this period Jerry and June prevented Josephine from calling Kathleen and Dennis, left her alone for long periods of time, and neglected her health. The proposed complaint also alleged that Strohmeier failed to adequately maintain Josephine’s home, failed to rent it out to generate income, paid exorbitant legal fees, secreted trust assets in an undisclosed bank account and failed to compensate Dennis for taking care of Josephine. For reasons not apparent from the record, Dennis and Kathleen later withdrew this application without adjudication.

Josephine died in March 2010. Two weeks later Kathleen petitioned to remove Strohmeier as trustee and appoint herself as successor. Among other things, she alleged Strohmeier had breached her duty by failing to rent, sell and protect the trust property, favored Jerry over the other beneficiaries, and allowed him and his family to live in Josephine’s home without paying rent. Dennis was served with a copy of Kathleen’s petition.

The court denied the petition. It ruled: “The Court finds that there has been no breach of the duty by the trustee to the settlers [sic] or the conservator. The duty to rent the property was not specifically outlined in the trust document, and the language of the trust document was one that conveyed open access for Josephine Heath’s use. The language that the home is not to be sold, and that Ms. Heath was to continue to reside in the home as long as possible, expresses an access that Ms. Heath could not necessarily enjoy if the home were rented. Furthermore, the Court finds that there was no breach by the trustee in her failure to rent the property, even though there is the language in the trust . . . to lease the property. That language is more general than what appears to be the specific intent of the party.” The court also rejected Kathleen’s request to remove Strohmeier as trustee and ruled that the trust language precluded Kathleen’s appointment because she was not a professional fiduciary.

Shortly after Kathleen’s petition was denied, in November 2010 Dennis filed a complaint against Jerry, June and Strohmeier[2] alleging elder abuse and undue influence and seeking to invalidate the 2001 trust amendment. As amended in 2012, the complaint alleged that Jerry and June violated their duties of trust and loyalty to Josephine “by, among other acts and omissions, beginning in or before 2001 and continuing up to the date of death, and thereafter retaining ill-gotten gains, by isolating Josephine Heath in Contra Costa County during 2001, threatening Josephine Heath, unduly and improperly influencing Josephine Heath to sign documents that they arranged to have prepared (including a 2001 trust document/pour over will attached as Exhibit 2 to this First Amended Complaint), pressuring Josephine Heath to give them money, moving into Josephine Heath’s home [in collusion with Defendant Carol Strohmeier] without paying rent from at least August 2007 to the present, causing Josephine Heath’s money [in collusion with Defendant Carol Strohmeier] to be used so that defendants could repair and rebuild automobiles on Josephine Heath’s property, and by misusing June Canaris’s employment with the Solano County Superior Court to influence the judge hearing a petition to appoint a conservator for Josephine Heath.”

The defendants asserted laches, collateral estoppel and the statute of limitations as affirmative defenses. The court bifurcated the trial and ordered the affirmative defenses to be tried first. At trial, defendants argued the earlier litigation established that plaintiffs knew the salient facts as early as 2001 and certainly no later than 2005. Accordingly, the 4-year limitations period applicable to all causes of action expired before plaintiffs filed their complaint in 2010.

The court admitted into evidence filings from the earlier litigation, including Kathleen and Dennis’s 2005 petition seeking a determination that their attempt to revoke the 2001 trust amendment did not violate Josephine’s no contest clauses and their 2003 declaration complaining that defendants misappropriated trust funds by inflating attorneys’ fees, issuing blank checks and approving “questionable and outrageous expenses;” abducted Josephine from an assisted living facility and coerced her into signing critical documents during an ensuing 15-month period of isolation and confinement; diverted her social security and other monetary benefits to a secret bank account; and neglected her health care. Also admitted in evidence was a transcript of a 2010 hearing in which plaintiffs’ counsel argued, among other things, that the “triggering date” for Strohmeier’s liability was in 2003, “when it became time . . . to look into renting the property.”

Dennis testified he had complaints about Strohmeier’s management of the trust and excessive attorneys’ fees by 2002 and 2003. He admitted that prior to 2005 he believed Strohmeier should have rented out Josephine’s house and that he discussed Josephine’s mental capacity to amend her trust with attorneys as early as 2001. Questioned about the earlier litigation, Dennis admitted that in 2003 he believed Josephine lacked testamentary capacity when she signed the trust amendment in 2001; that defendants stalked, abducted and coerced her into signing it; and that they diverted her assets into a secret bank account and neglected her health.

The court ruled from the bench that “based upon the evidence that’s been presented to the Court, the Court finds that the statute of limitation has run as it relates to all counts. Plaintiff had sufficient information to bring any type of an action he wanted years before the running of the statute of limitations.” Accordingly, judgment was granted for defendants.[3] This timely appeal followed.

DISCUSSION

As we understand his argument, Dennis does not dispute any of the facts supporting the judgment. Rather, he contends the court erred in either interpreting the controlling law or in applying that law to the undisputed evidence. So viewed, our review is de novo. (Arcadia Development Co. v. City of Morgan Hill (2008) 169 Cal.App.4th 253, 260–261; see Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800–801.)

It is also undisputed that the longest possible limitations period applicable to any of Dennis’s causes of action is four years. (Welf. & Inst. Code, § 15657.7 [financial abuse of elder]; Code Civ. Proc., § 343 [catchall/undue influence]; Snyder v. California Insurance Guarantee Association (2014) 229 Cal.App.4th 1196, 1208 [limitations applicable to a declaratory relief action depends on the nature of the underlying obligation].) “The general rule for defining the accrual of a cause of action sets the date as the time ‘when under the substantive law, the wrongful act is done,’ or the wrongful result occurs, and the consequent ‘liability arises. . . .” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) Under the discovery rule, “the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110.)

The evidence described above definitively established that Dennis and Kathleen had knowledge of facts that they considered the basis of their current action as early as 2001 or 2003, and by 2005 at the latest. Dennis does not disagree. Instead, he argues the amended complaint alleged Strohmeier’s failure to rent out Josephine’s home was an ongoing wrongdoing. Accordingly, in his view, the statute of limitations does not bar him from pursing damages for unrealized monthly rent allegedly incurred within the four years preceding the 2010 complaint, e.g., from November 2006 to November 2010.

We disagree. Our Supreme Court has recognized two types of continuing injury: the “continuing violation doctrine” and the “theory of continuous accrual.” (See Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1197.) “The continuing violation doctrine aggregates a series of wrongs or injuries for purposes of the statute of limitations, treating the limitations period as accruing for all of them upon commission or sufferance of the last of them.” (Id. at p. 1192.) Under the theory of continuous accrual, “a series of wrongs or injuries may be viewed as each triggering its own limitations period, such that a suit for relief may be partially time-barred as to older events but timely as to those within the applicable limitations period.” (Ibid.)

Dennis has not shown that his causes of action come within the limitations period under either doctrine. His only California authority on the continuing violation doctrine is Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, which held the doctrine applies to an employer’s failure over time to reasonably accommodate a disabled employee. But Richards was decided in the specific context of the Americans with Disabilities and Fair Employment and Housing Acts and its analysis was premised largely on their specific statutory objectives and relevant policy considerations. (Id. at pp. 811–824.) So too as to National Railroad Passenger Corporation v. Morgan (2002) 536 U.S. 101, 118–119, which held that federal hostile work environment claims under Title VII are subject to the continuing violation doctrine. The statutes, objectives and policies that animated the analyses in these cases have no bearing in the context of this one.

We are also unpersuaded that Dennis’s allegations are akin to allegations of the ongoing collection of an unlawful tax, which has been held subject to the continuous accrual theory. (See Howard Jarvis Taxpayers Ass’n v. City of La Habra (2001) 25 Cal.4th 809, 818–822 & fn. 3 (Howard Jarvis).) While he does not dispute that he believed before 2005 that Strohmeier wrongly declined to rent out Josephine’s home, Dennis argues that decision continued to injure him through the 2006-2010 period because, as we understand it, each month the estate went without the rental income. Accordingly, he maintains, under the continuous accrual theory he retains a live claim for damages reaching back four years before he filed suit in 2010.

This argument, too, misses the mark. At most, Dennis’s allegation asserts continuously accruing damages attributable to Strohmeier’s decision made prior to 2005 not to rent the property. Unlike the situation in Howard Jarvis, she did not assert her position anew every month. Rather, Dennis’s complaint is about the continuing consequence of a unitary decision the trustee made early in the trust administration. “f continuing injury from a completed act generally extended the limitations periods, those periods would lack meaning. Parties could file suit at any time, as long as their injuries persisted. This is not the law. The time bar starts running when the plaintiff first learns of actionable injury [citation], even if the injury will linger or compound. ‘ “ ‘[W]here an injury, although slight, is sustained in consequence of the wrongful act of another, and the law affords a remedy therefor, the statute of limitations attaches at once. It is not material that all the damages resulting from the act shall have been sustained at that time, and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date. . . .’ ” ’ ” (Vaca v. Wachovia Mortg. Corp. (2011) 198 Cal.App.4th 737, 745 ([i]Vaca).) The Vaca court was thus unpersuaded by the plaintiff’s attempt to invoke the continuing wrong exception where the defendant continued to demand payment of loan fees incurred pursuant to an allegedly fraudulent loan after the limitations period had run on the alleged fraud. (Id. at pp. 744–745) Vaca is on point and dispositive.

Dennis’s remaining arguments are not easy to make out, but, reading his opening and reply briefs together, he seems to argue it would have been futile to challenge the 2001 trust amendment within the statutory period because he lacked standing to challenge Josephine’s 2001 pour over will “which incorporated all of the provisions of the 2001 trust” until she died in 2010. He provides neither legal authority nor analysis to explain why these assertions are valid or should shield his lawsuit from the statute of limitations. “An appellate court is not required to consider alleged errors where the appellant merely complains of them without pertinent argument.” (Strutt v. Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d 866, 873–874.) “ ‘The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel. Accordingly, every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’ [Citation.] [¶] It is the duty of appellants’ counsel, not of the courts, ‘by argument and the citation of authorities to show that the claimed error exists.’ ” (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050.) Dennis also claims, without explanation or citation to the record, that the trial court “did not evaluate the contents of the First Amended Complaint accurately.” We decline to indulge this contention because Dennis has not cited to the record or to any relevant legal authority to support it, and has not provided the arguments or analysis necessary for us to conduct an adequate review.

DISPOSITION

The judgment is affirmed.

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Siggins, J.

We concur:

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McGuiness, P.J.

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Jenkins, J.

Heath v. Heath, A146193