Sferas v. Liberante

 

 

 

 

 

 

 

 

Filed 11/14/13  Sferas v. Liberante CA2/7

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SEVEN

 

 
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SAMUEL SFERAS, as Executor, etc.,               Plaintiff and Appellant,               v.   BENITO LIBERANTE et al.,               Defendants and Respondents.

B243412         (Los Angeles County       Super. Ct. No. MC022728)

 

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Frank Johnson, Judge. 
Affirmed.

            Samuel
Sferas, in pro. per., for Plaintiff and Appellant.

            Anderson,
McPharlin & Conners, Colleen A. Déziel and Leila M. Rossetti for Defendant
and Respondent Premier America
Credit Union.

            Barger
& Wolen, John C. Holmes and Richard B. Hopkins, II for Defendant and
Respondent New York Life
Insurance and Annuity Corporation.

 

______________________

>

INTRODUCTION

 

            Plaintiff Samuel Sferas, as executor
and administrator of the estate and living trust of Julie A. Caravello, appeals
from judgments of dismissal in favor of defendant Premier America Credit Union
and defendant New York Life Insurance and Annuity Corporation after the trial
court sustained their demurrers without leave to amend.  The trial court ruled that the judgment in a
prior lawsuit between the parties operated as res judicata to bar this lawsuit.  We affirm.

 

FACTUAL AND
PROCEDURAL BACKGROUND

 

            This is the third lawsuit against these
defendants.  The allegations of
negligence in all three lawsuits are substantively the same, although the
wording of the allegations in each complaint varies slightly.

 

            A.        >The First Lawsuit

            On August 19, 2009 two of the adult
children of decedent Julie A. Caravello (Julie), Perry F. Caravello (Perry) and
Kenneth Caravello (Kenneth), filed an action against Julie’s other adult child,
defendant Benito Liberante aka Brian Caravello (Brian), Brian’s wife Amy
Liberante (Amy), Premier America Credit Union (Premier), and New York Life
Insurance and Annuity Corporation (New York Life).href="#_ftn1" name="_ftnref1" title="">>[1]  (Caravello
v. Liberante (Super. Ct. L.A. County, 2009, No. LC086618).)  The complaint asserted only one cause of
action against Premier and New York Life for negligence based on the allegation
that they had unlawfully released funds from Julie’s accounts to Brian and Amy.  Brian and Amy demurred to the complaint on
the ground that Perry and Kenneth lacked standing.  The trial court sustained the demurrer with
leave to amend, noting that Mark Sferas was the proper party to bring this
action because Julie’s estate documents named him as the successor trustee and
executor of her estate. 

            On October
30, 2009 Perry and Kenneth filed a first
amended complaint adding a new plaintiff, Mark Sferas, “as administrator of
[Julie’s] last will and testament and living trust.”  Premier demurred on the grounds that the plaintiffs
lacked standing and that Premier did not owe the plaintiffs any duty.  On November
13, 2009 the court, at plaintiffs’ request, dismissed the case without prejudice.

 

            B.        >The Second Lawsuit

            On December
4, 2009 Perry, Kenneth, and Mark Sferas “as administrator of [Julie’s] last will
and testament and living trust” filed another lawsuit against Premier and New
York Life, as well as Brian and Amy.  (>Sferas v. Liberante (Super. Ct. L.A.
County, 2010, No. LC087815).)  The
negligence allegations against Premier and New York Life were the same as the
negligence allegations against them in the first lawsuit.  On July 12,
2010
the trial court sustained Premier’s demurrer to the complaint by Perry and
Kenneth without leave to amend on the grounds that they lacked standing and
that Premiere and New York Life did not owe Perry and Kenneth a duty that would
allow them to state a claim for negligence. 
The trial court stated that “[a]s all these issues were pointed out to
[Perry and Kenneth] in a prior action (LC086618), and because the prior
demurrer was sustained without leave to amend, the court again sustains the
demurrer without leave to amend for the reasons noted above.”  The court sustained Premier’s demurrer to the
complaint by Mark Sferas, but granted him leave to amend because he had not
been a party in the first action.  

            On July
26, 2010 Mark Sferas filed a first amended complaint in the second lawsuit, again
alleging a single cause of action for negligence against Premier and New York
Life.  Mark Sferas alleged:  “In taking the actions herein alleged . . . ,
Defendants [Premier and New York Life] . . . acted negligently,
carelessly, recklessly, wantonly and unlawfully.  Said Defendants owed a duty of care to
Plaintiffs which was breached and thereby caused them
damages . . . . 
[¶]  Said Defendants [Premier and New
York Life], continuing in or about six (6) months before Julie A. Caravello
died on or about July 13, 2010, negligently and unlawfully allowed to be
transferred funds to Brian and Amy Liberante from Julie A. Caravello’s annuity
and bank account or accounts by not properly monitoring, supervising and
reviewing forged financial documents and checks and a purported false power of
attorney form or forms signed and dated by Brian or Amy Liberante.  Had the agents, employees and officers of
said financial institution Defendants exercised reasonable care and attention,
and reviewed the signature cards of Julie A. Caravello, as well as properly
spoke and communicated to her as to her wishes and intentions, the funds in the
Defendants’ accounts would not have been improperly, illegally and unlawfully
transferred to the Liberantes.  [¶]  As a direct, legal and proximate result of
Defendants’ actions, omissions and negligence, as alleged above, Plaintiffs
have been harmed in that Plaintiffs were injured, subjected to humiliation,
indignity, undue emotional trauma and stress and prevented from transacting and
attending to their normal business, professional and personal affairs.  Plaintiffs suffered great physical and mental
pain and suffering, all to their general damage in an amount according to proof
at or before trial.  [¶]  As a direct, proximate and legal result of
the aforesaid negligence, Plaintiffs have further sustained additional general
damages for loss of monies, funds and proceeds due them from the estate of the
late Julie Caravello, as hereinbefore alleged and described, in the amount of
at least $160,000.00, plus legal interest thereon . . . .”  (Capitalizations omitted.)

            On September 13, 2010 the trial court
sustained Premier’s demurrer to the first amended complaint without leave to
amend.  The court ruled that plaintiff
did not state a negligence cause of action against Premier because Premier “does
not owe any duty to personally confirm the wishes and intentions of a depositor
who requests withdrawal.”  Citing >Copesky v. Superior Court (1991) 229
Cal.App.3d 678, the court ruled that “the bank-depositor relationship is not a ‘special
relationship’ . . . such as to give rise to tort damages when an
implied contractual covenant of good faith is broken.”  (Id.
at p. 694.)

            On September 27, 2010 the trial
court sustained New York Life’s demurrer to the first amended complaint without
leave to amend and struck the complaint because Mark Sferas had failed to
appear at prior court proceedings and had not responded to the court’s order to
show cause.  The court dismissed the case
with prejudice.

 

            C.        The Third Lawsuit

            Samuel Sferas, who had succeeded
Mark Sferas as executor of Julie’s estate and trustee of her trust, filed this
action on July 11, 2011, and the operative first amended complaint on February 21,
2012.  (Sferas v. Liberante (Super. Ct. L.A. County, 2012, No. MC022728).)  The first amended complaint again alleged one
cause of action for negligence against Premier and New York Life.  The first amended complaint also named Brian
and Amy, as well as five individuals not previously named, as defendants.

            Samuel Sferas alleged that Amy, conspiring
with Brian, “forged Julie A. Caravello’s signature on various forms of . . .
Premier and . . . New York Life . . . in order to gain
illegal access to her funds and monies. 
Agents and employees of . . . Defendants . . . failed
to properly and reasonably verify Julie A. Caravello’s handwriting and
signatures on these forms, and take other appropriate security measures to
protect her right of privacy, in order to ensure that her funds and monies were
not remitted to . . . Amy and Brian. 
[¶]  [In doing so,] Premier and
New York Life . . . acted negligently, carelessly, recklessly,
wantonly and unlawfully.  [They] owed a
duty of care to Plaintiffs.  This duty
was breached . . . . 
[¶]  As a direct, legal and
proximate result of Defendants’ actions, omissions and negligence, . . .
Plaintiffs suffered general damages, in an amount according to proof at or
before trial.  [¶]  As a direct, proximate and legal result of
the aforesaid negligence, Plaintiffs have been unjustly deprived of monies,
funds and proceeds due [to Plaintiffs] from the estate of the late Julie A.
Caravello . . . in the amount of at least $170,000.00 . . . .”  (Capitalizations omitted.)

            Premier and New York Life demurred
to the first amended complaint on the grounds that the action was barred by res
judicata and that they owed no duty to the plaintiffs.  On June 8, 2012 the trial court sustained the
demurrers without leave to amend.  The
court found that the negligence cause of action was barred by res judicata and
did not state a claim because neither Premier nor New York Life owed a duty to
plaintiffs.  The court stated, “[a]ny
liability by [defendants] would be contractual and not tortious.”  The trial court entered judgment in favor of
Premier on June 14, 2012, and in favor of New York Life on June 25, 2012.  Samuel Sferas filed a timely notice of appeal
from both judgments.

 

DISCUSSION

 

            A.        >Standard of Review

            When reviewing a judgment dismissing
an action after an order sustaining a demurrer without leave to amend, we
review “‘the complaint de novo to determine whether it alleges facts sufficient
to state a cause of action under any legal theory, such facts being assumed
true for this purpose.  [Citations.]’  [Citation.]” 
(Committee for Green Foothills v.
Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; >Akopyan v. Wells Fargo Home Mortgage, Inc.
(2013) 215 Cal.App.4th 120, 130-131; Sandler
v. Sanchez (2012) 206 Cal.App.4th 1431, 1436.)  “[W]e treat the demurrer as admitting the
complaint’s well-pleaded allegations of material fact, but not its contentions,
deductions or conclusions of law.”  (>Ross v. RagingWire Telecommunications, Inc.
(2008) 42 Cal.4th 920, 924.)  “In
addition, we give the complaint a reasonable interpretation, and read it in
context.”  (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)  â€œWe will affirm the ruling if there is any
ground on which the demurrer could have been properly sustained.  [Citation.]” 
(Intengan v. BAC Home Loans
Servicing LP (2013) 214 Cal.App.4th 1047, 1052.)

            When a
demurrer is sustained without leave to amend, “we decide whether there is a
reasonable possibility that the defect can be cured by amendment: if it can be,
the trial court has abused its discretion and we reverse.  [Citation.]” 
(City of Dinuba v. County of
Tulare (2007) 41 Cal.4th 859, 865; accord, Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1484-1485.)  â€œâ€˜[W]here the nature of the plaintiff’s claim
is clear, and under substantive law no liability exists, a court should deny
leave to amend because no amendment could change the result.’  [Citation.]” 
(San Mateo Union High School Dist.
v. County of San Mateo (2013) 213 Cal.App.4th 418, 441.)  “‘[T]he burden of proving a reasonable
possibility exists that a complaint’s defects can be cured by amendment rests “squarely
on the plaintiff.”’  [Citation.]”  (Whittemore
v. Owens Healthcare-Retail Pharmacy, Inc. (2010) 185 Cal.App.4th 1194,
1199.)

 

            B.        >Res Judicata

            The trial court ruled that res
judicata barred this action.  On appeal,
Samuel Sferas does not address this part of the trial court’s ruling, thus
forfeiting any challenge to the judgment on this issue.  (See
People ex rel. Reisig v. Acuna (2010) 182 Cal.App.4th 866, 873 [“point not
argued or supported by citation to authority is forfeited”].)  Although an appellate court has discretion to
excuse forfeiture, “appellate courts typically have engaged in discretionary
review only when a forfeited claim involves an important issue of
constitutional law or a substantial right.” 
(In re Sheena K. (2007) 40
Cal.4th 875, 887, fn. 7; see Kelly
v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 452 [“‘the
appellate court’s discretion to excuse forfeiture should be exercised rarely
and only in cases presenting an important legal issue’”].)  There is no such important legal issue here.

            Moreover, even if Samuel Sferas had
not forfeited the issue, the trial court correctly ruled that the judgments in
favor of Premier and New York Life in the second lawsuit bar the identical claim
against Premier and New York Life in this action.  “‘Under the doctrine of res judicata, a
valid, final judgment on the merits is a bar to a subsequent action by parties
or their privies on the same cause of action.’” 
(Villacres v. ABM Industries Inc.
(2010) 189 Cal.App.4th 562, 575.)  “‘“‘If
the matter was within the scope of the action, related to the subject matter
and relevant to the issues, so that it could
have been raised, the judgment is conclusive on it . . . .  The reason for this is manifest.  A party cannot by negligence or design
withhold issues and litigate them in consecutive actions.  Hence the rule is that the prior judgment is
res judicata on matters which were raised or could have been raised, on matters
litigated or litigable. . . .’”’ 
[Citation.]”  (>Id. at p. 576; see Bullock v. Philip Morris USA, Inc. (2011) 198 Cal.App.4th 543, 557
[“[r]es judicata not only precludes the relitigation of issues that were
actually litigated, but also precludes the litigation of issues that could have
been litigated in the prior proceeding”]; Federal
Home Loan Bank of San Francisco v. Countrywide Financial Corp. (2013) 214
Cal.App.4th 1520, 1529 [same].)

            “‘The doctrine of res judicata rests
upon the ground that the party to be affected, or some other with whom he is in
privity, has litigated, or had an opportunity to litigate the same matter in a
former action in a court of competent jurisdiction, and should not be permitted
to litigate it again to the harassment and vexation of his opponent.’  [Citation.]” 
(Pollock v. University of Southern
California (2003) 112 Cal.App.4th 1416, 1427.)  “The application of the doctrine in a given
case depends upon an affirmative answer to these three questions:  (1) Was the issue decided in the prior
adjudication identical with the one presented in the action in question?  (2) Was there a final judgment on the merits?  (3) Was the party against whom the plea
is asserted a party to or in privity with a party to the prior
adjudication?  [Citations.]”  (Levy
v. Cohen (1977) 19 Cal.3d 165, 171; see In
re Marriage of Modnick (1983) 33 Cal.3d 897, 904, fn. 6; >Estate of Redfield (2011) 193
Cal.App.4th 1526, 1534.)

            This case yields “yes” answers to
each of these three questions.  First, the
issues in this lawsuit are identical to those in the second lawsuit.  In both actions a Sferas alleged that Premier
and New York Life (1) â€œnegligently, carelessly, recklessly, wantonly and
unlawfully” caused plaintiff to sustain “damages”; (2) unreasonably failed to
verify Julie’s handwriting on forged forms; (3) improperly and illegally
remitted funds from Julie’s accounts to Brian and Amy; and (4) unjustly
deprived Julie’s estate of at least $160,000. 
The primary right at issue in the first, second, and third lawsuits was
the same:  the right of the executor and the
administrator, on behalf of the estate and the living trust, respectively, to
recover at least $160,000 negligently released by Premier and New York Life from
Julie’s accounts to Brian and Amy.  (See >Le Parc Community Assn. v. Workers’ Comp.
Appeals Bd. (2003) 110 Cal.App.4th 1161, 1170 [“California law defines a ‘cause
of action’ for purposes of the res judicata doctrine by analyzing the primary
right at stake”].)

            Second,
the judgment in the second lawsuit is a final judgment on the merits.  An order sustaining a demurrer without leave
to amend is on the merits and will have res judicata effect unless “the
pleading defects are ‘technical or formal’ and can be corrected by a new
pleading . . . .”  (>Perez v. Roe 1 (2006) 146 Cal.App.4th
171, 184.)  A judgment will support the
application of res judicata where the judgment follows the sustaining of a
demurrer “on a ground of substance” or “where the demurrer sets up the failure
of the facts alleged to establish a cause of action, and the same facts are
pleaded in the second action.”  (>Goddard v. Security Title Ins. & Guar.
Co. (1939) 14 Cal.2d 47, 52; see Keidatz
v. Albany (1952) 39 Cal.2d 826, 828 [judgment is “on the merits to the
extent that it adjudicates that facts alleged do not constitute a cause of
action, and will, accordingly, be a bar to a subsequent action alleging the
same facts”]; Pollock v. University of
Southern California, supra, 112
Cal.App.4th at pp. 1427-1428 [“fact that the [judgment in the prior
action] resulted from the sustaining of a general demurrer does not preclude
application of the res judicata doctrine”]; Ojavan
Investors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th 373, 384 [“a
judgment following the sustaining of a general demurrer may be on the merits”].)href="#_ftn2" name="_ftnref2" title="">[2]  The judgments in
favor of Premier and New York Life in the second lawsuit followed orders
sustaining demurrers without leave to amend on the ground that Premier and New
York Life had no duty that could give rise to a negligence claim.  The basis of this ruling was “a ground of
substance,” on the merits, that the facts alleged did not state a claim, not a
technical or formal defect.  Samuel Sferas
has not alleged any new, additional, or different facts in this lawsuit.

            Third,
Samuel Sferas was in privity with Mark Sferas in the second lawsuit.  Although they have different first names,
they were both acting not in their individual capacities but in their
representative capacities as the executor of Julie’s will and the administrator
of her trust.  Samuel was the successor
to Mark in both capacities.  “The powers
of a trustee are not personal to any particular trustee but, rather, are
inherent in the office of trustee.  It
has been the law in California for over a century that a new trustee ‘succeed[s]
to all the rights, duties, and responsibilities of his predecessors.’  [Citations.]” 
(Moeller v. Superior Court
(1997) 16 Cal.4th 1124, 1131; see Smith
v. Cimmet (2011) 199 Cal.App.4th 1381, 1396-1397; Eddy v. Fields (2004) 121 Cal.App.4th 1543, 1548.)  Similarly, a successor executor, as personal
representative of the estate, “may prosecute to final judgment any suit
commenced by the former personal representative” and “has the powers and duties
. . . that the former personal representative would have had.”  (Prob. Code, § 8524, subds. (a), (c).)

            All
three criteria for application of res judicata are satisfied.  (See Levy v. Cohen,
supra, 19 Cal.3d at p. 171; >Pollock v. University of Southern California,
supra, 112 Cal.App.4th at p. 1427.)  The trial court properly ruled that the
second lawsuit operated as res judicata to bar this, the third lawsuit against
Premier and New York Life.

 

            C.        Negligence

            Samuel Sferas’ only contention on
appeal is that his allegations state a claim for negligence.  Samuel Sferas, however, limits his argument
to conclusory statements and citations to cases without any discussion or
explanation of how those cases relate to the facts alleged in the first amended
complaint.  Nor does Samuel Sferas
provide any citations to the record in support of his contention that he has
stated a negligence claim.  We therefore
treat his argument on the issue of negligence as forfeited.  (See City
of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286-287 [“an appellant
must supply the reviewing court with some cogent argument supported by legal
analysis and citation to the record,” and “we may disregard conclusory
arguments that are not supported by pertinent legal authority or fail to
disclose the reasoning by which the appellant reached the conclusions he wants
us to adopt”]; Kaufman v. Goldman
(2011) 195 Cal.App.4th 734, 743 [appellate court may treat as waived any
argument not “supported by both coherent argument and pertinent legal authority”];
Cal. Rules of Court, rule 8.204(a)(1)(B) & (C).)

            Moreover, even if Samuel Sferas had
not forfeited the issue, and even if res judicata did not bar his negligence
claim, the trial court correctly ruled that Premier and New York Life owed him
no duty of care.href="#_ftn3"
name="_ftnref3" title="">>[3]  In the exercise of ordinary care, a bank is generally not required to “look to the name on
the signature card to determine the identity of the customer.”  (Rodriguez
v. Bank of the West (2008) 162 Cal.App.4th 454, 462.)  “[A] bank owes a limited duty of inquiry when
a check presented for deposit bears some objective signs of fraud” and the
circumstances of a third party attempting to divert proceeds of a check made
payable to the bank are “sufficiently suspicious.”  (Software
Design & Application, Ltd. v. Hoefer & Arnett, Inc. (1996) 49
Cal.App.4th 472, 479, 480; see Sun ’n Sand, Inc. v. United California Bank (1978) 21 Cal.3d 671, 695; Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1151,
fn. 3 [exception applies where the bank allows “‘a person to deposit a check,
payable to someone else, into a personal account, under circumstances that
should have alerted the bank to the possibility of fraud’”].)  A bank’s “duty is narrowly circumscribed”
and its “obligation is minimal,” although it cannot  “ignore . . . danger signals[.]”  (Sun ’n Sand, Inc.,
supra, at pp. 695-696; see >Karen Kane, Inc. v. Bank of America
(1998) 67 Cal.App.4th 1192, 1202 [“[t]he duty of inquiry described in >Sun ’n Sand is ‘narrowly
circumscribed’”]; Story Road Flea Market,
Inc. v. Wells Fargo Bank (1996) 42 Cal.App.4th 1733, 1742, italics omitted
[“‘ordinary care’ can be established notwithstanding the bank’s failure
to ‘examine the instrument’ so long as the bank’s processing of the instrument
was in accordance with both the bank’s practices and general banking usage”].)  Like the relationship between a bank and a
customer, “[t]he relationship of an insurer and an annuitant is not a fiduciary
one,” and an insurer is only required to perform the functions stated in the annuity
contract.  (3B (2013) C.J.S. Annuities
§ 34; see Connick v. Teachers Ins. and
Annuity Ass’n (9th Cir. 1986) 784 F.2d 1018, 1021.)

            Samuel Sferas alleged that Premier
and New York Life unreasonably failed to verify Julie’s handwriting and
signature on forms allegedly forged by Amy in conspiracy with Brian, and then
disbursed the money from Julie’s bank account with Premier and annuity with New
York Life based on the allegedly forged signature.  Samuel Sferas did
not allege that Premier ignored any “danger signals” or objective signs of
forgery or fraud, that there were suspicious circumstances in connection with
the “financial documents and checks,” or
that Premier failed to act in a manner consistent with general banking practice.  Thus, Samuel Sferas failed to state a claim for
negligence against Premier or New York Life.

            The cases cited by Samuel Sferas
do not support his contention that Premier and New York Life had a duty to the
estate in connection with the disbursement of the funds in the circumstances of
this case.  In Commercial Standard Ins. Co. v. Bank of America (1976) 57
Cal.App.3d 241, the court held that the bank had a duty of reasonable care in
disbursing construction loan proceeds that it had agreed to disburse “in
accordance with the value of construction work performed” at various benchmarks
in the construction process.  (>Id. at p. 249.)  In Rowland
v. Christian (1968) 69 Cal.2d 108, the court held that an occupier of land could
be liable to a person injured on the land for negligence, regardless of whether
the injured person was a trespasser, licensee, or invitee.  (Id.
at pp. 117-119.)  In >Fireman’s Fund Ins. Co. v. Security Pacific
Nat. Bank (1978) 85 Cal.App.3d 797, a subrogation case, the court held “that
under the facts of this case a noncustomer drawer whose signature was forged on
a check drawn upon his account is precluded, by divisions 3 and 4 of the
California Uniform Commercial Code, from bringing a direct cause of action
based upon statutory or common law negligence against a collecting bank after
final payment has been made by the drawee bank.”  (Id.
at pp. 829-830.)  These cases all
involve very different factual circumstances than those alleged in this case.

            Finally, the trial
court did not abuse its discretion in sustaining the demurrers by Premier and
New York Life without leave to amend.  Samuel
Sferas had an opportunity to amend his complaint, and on appeal he has not
argued that the trial court erred in denying him further leave to amend.  Nor has Samuel Sferas suggested on appeal how
he would amend if given another opportunity to do so.   (See Arce
v. Childrens Hospital Los Angeles (2012) 211 Cal.App.4th 1455, 1497, fn. 19
[“[w]hen reviewing a demurrer that has been sustained without leave to amend, ‘[t]he
plaintiff has the burden of proving that an amendment would cure the defect,’”
and where the plaintiff has “not offered any proposed amendment, [the plaintiff
has] not carried [its] burden”]; Long v.
Century Indemnity Co. (2008) 163 Cal.App.4th 1460, 1468 [“‘[l]eave to amend
should not be granted where . . .
amendment would be futile’”].)

 

DISPOSITION

 

            The judgment is affirmed.  Defendants are to recover their costs on
appeal.

 

 

                                                                                    SEGAL,
J.href="#_ftn4" name="_ftnref4" title="">*

 

 

We concur:

 

 

 

                        WOODS,
Acting P. J.

 

 

 

                        ZELON, J.