KIMBERLY RALLO et al., Plaintiffs and Appellants, v. VIRGINIA O‘BRIAN, as Trustee, etc., Defendant and Respondent.
B290526
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE
Filed 8/3/20
Elizabeth A. Lippitt, Judge
Los Angeles County Super. Ct. No. 17STPB08014. CERTIFIED FOR PARTIAL PUBLICATION.
CERTIFIED FOR PARTIAL PUBLICATION*
APPEALS from judgments of dismissal of the Superior Court of Los Angeles County. Elizabeth A. Lippitt, Judge. Affirmed.
Hunter Salcido & Toms and Robert L. Toms, Jr., for Plaintiff and Appellant Kimberly Rallo.
Law Offices of Jon Udewitz, Jonathan J. Udewitz; Jeff Lewis Law, Jeffrey Lewis and Sean C. Rotstan for Plaintiff and Appellant Adam Ross.
Loeb & Loeb, Gabrielle A. Vidal and Anita P. Wu
INTRODUCTION
” ‘The right to dispose of property in contemplation of death is as old as the right to acquire and possess property, and the laws of all civilized countries recognize and protect this right.’ ” (Estate of Della Sala (1999) 73 Cal.App.4th 463, 467 (Della Sala).) This appeal stems from judgments entered after the trial court sustained demurrers without leave to amend to two probate petitions filed by Kimberly Rallo and Adam Ross—adult children of the decedent Hugh O‘Brian. At issue is O‘Brian‘s right to choose to disinherit anyone claiming to be his heir after his death. Kimberly and Adam each claim a right to O‘Brian‘s assets under
FACTS AND PROCEDURAL BACKGROUND
Hugh O‘Brian, an actor best known for his role as Wyatt Earp in a popular 1950s television series, died on September 5, 2016. He established the Hugh O‘Brian Trust in January 1992. In June 2006, O‘Brian entered his only marriage with his longtime girlfriend Virginia Barber, now Virginia O‘Brian. He was 81. O‘Brian executed his Third Amendment to and Restatement of the Hugh O‘Brian Trust in July 2009, and his Fourth Amendment to the Hugh O‘Brian Trust in January 2011. We refer to these documents, collectively, as the “Trust.” Virginia O‘Brian is O‘Brian‘s surviving spouse and trustee of the Trust (trustee).
After O‘Brian‘s death, Adam, James Venverloh, Donald Etkes, and Kimberly brought claims in the Superior Court, seeking to receive an intestate share of O‘Brian‘s estate as his unintentionally omitted children under
Consistent with the applicable standard of review, we draw our statement of facts from the amended pleadings and matters properly subject to judicial notice.3 (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP (2010) 183 Cal.App.4th 238, 240.) We treat as true ” ‘all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.’ ” (Blank, at p. 318.)
The Trust allocates specific dollar amounts to about 20 or so of O‘Brian‘s named friends and family members, including Virginia and O‘Brian‘s brother, sister-in-law, and nieces and nephews, and individuals who worked for him, as well as to the Motion Picture and Television Fund. Upon Virginia‘s death, the residue of the Trust assets are to be allocated to the O‘Brian Charitable Foundation.
In Article Two of the Trust, entitled “Declarations Regarding Family,” O‘Brian declares, “I have no children, living or deceased. [¶] I am intentionally not providing for HUGH DONALD ETKES (also known as HUGH DONALD KRAMPE), ADINA ETKES, JAMES E. VENVERLOH, BETTY DEAN, any of their descendants, and any other person who claims to be a descendant or heir of mine under any circumstances and without regard to the nature of any evidence which may indicate status as a descendant or heir.”4
Paragraph 14 of Article 14 of the Trust, entitled “Omitted Heirs,” similarly states, “Except as otherwise provided in this Agreement, I have intentionally and with full knowledge omitted to provide for HUGH DONALD ETKES (also known as HUGH DONALD KRAMPE), ADINA ETKES, JAMES E. VENVERLOH, BETTY DEAN, the descendants of any of them, and any of my heirs who may be living at the date of my death.” The Fourth Amendment to the Trust does not change these provisions.
2. Kimberly
From about January 1962 to February 1963, O‘Brian dated Kimberly‘s mother, Carol Ann Schaeffer (now Carol Ann Henson). Schaeffer discovered she was pregnant in February or March 1963. O‘Brian, a film star, was out of the country at the time, so Schaeffer contacted his agent. The agent gave her money and an address of a doctor in Tijuana and told her to ” ‘take care of it.’ ” Schaeffer did not end the pregnancy and was asked to see a doctor O‘Brian knew.
Schaeffer became romantically involved with Raymond Cohen and married him in June 1963 before Kimberly was born. Kimberly was born on August 31, 1963, and O‘Brian paid the doctor who delivered her. Cohen is listed as Kimberly‘s father on her birth certificate, but O‘Brian is her biological father.
Kimberly alleges O‘Brian was not aware she was his child at the time he executed the Trust. The petition alleges Etkes and Venverloh claimed to be
The supplement to the petition adds the following allegations: O‘Brian failed to provide for Kimberly in his Trust “solely because [he] was unaware of [her birth] at the time he executed the Trust. . . . [He] suffered from cognitive decline in his 80s and at other times.”5 Based on Kimberly‘s information and belief, O‘Brian was diagnosed with Alzheimer‘s disease “or other significant cognitive mental decline.” She alleges O‘Brian “completely forgot” about her when he executed his Trust due to “his cognitive impairment and the passage of time.” Had O‘Brian known Kimberly “as his child had been born at the time he executed his Trust, [he] would have provided for [her].”
Kimberly alleges she is entitled under
3. Adam
Adam‘s second amended petition alleges he is a biological child of O‘Brian. Adam did not know O‘Brian was his father during O‘Brian‘s lifetime, and O‘Brian “never had any knowledge of Adam.” Adam alleges he has not received a full copy of O‘Brian‘s testamentary documents. He alleges that, at the time O‘Brian executed those documents, O‘Brian “was informed and believed that he had no natural born children nor others that he adopted. The sole reason that [O‘Brian] did not provide for Adam in his testamentary documents is because [he] was unaware of Adam‘s birth.” The petition does not attach the Trust.
Adam alleges he is entitled to his intestate share of O‘Brian‘s estate or the assets held in his trust as an omitted child under
4. Demurrers
The trustee again demurred to Kimberly‘s supplemented petition on February 6, 2018, and to Adam‘s second amended petition on February 13, 2018,
DISCUSSION
Kimberly and Adam both contend they alleged sufficient facts to state a claim under
Adam asserts several additional contentions of error. He argues the trial court improperly took judicial notice of the Trust, the
1. Standards of review
“On appeal from a judgment after a demurrer is sustained without leave to amend, we assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and facts of which judicial notice can be taken.” (Syngenta Crop Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1181.) “[W]e give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank, supra, 39 Cal.3d at p. 318.) “[W]e examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory.” (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) ” ‘If the complaint fails to plead, or if the defendant negates, any essential element of a particular cause of action, this court should affirm the sustaining of a demurrer.’ ” (Consumer Cause, Inc. v. Arkopharma, Inc. (2003) 106 Cal.App.4th 824, 827.)
When a demurrer is sustained without leave to amend, we also must “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; if not, there has been no abuse of discretion and we affirm.” (Blank, supra, 39 Cal.3d at p. 318.) “The burden of proving such reasonable possibility is squarely on the plaintiff.” (Ibid.) Neither the trial court nor this court will rewrite the complaint. (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1153.)
2. Applicable law
California‘s
An omitted child born after the decedent‘s execution of his testamentary instruments is treated differently. Under
demonstrated through the specific circumstances identified in
The
at p. 468.) Former section 90 thus presumed the omission of any child from a will was unintentional (Mowry, supra, 107 Cal.App.4th at p. 343), unless the testator‘s intent to do so appeared in the will, similar to the exception now stated in
Section 90 was criticized, however, as “serv[ing] to frustrate the testator‘s wishes.” (Della Sala, supra, 73 Cal.App.4th at p. 469.) The Legislature repealed section 90 and enacted sections 6570 to 6572—the predecessors to sections 21620 to 21622. (Della Sala, at p. 469.) Those sections are based on section 2-302 of the Uniform Probate Code, which distinguishes between
Accordingly, the enactment of the predecessor to
to obtain a distribution contrary to it must prove “the sole reason [the parent] did not provide for [the child] was a mistaken belief [the child] was dead [or an unawareness of the child‘s birth].” (Della Sala, at pp. 469-470.) The presumption against unintentional omission remains intact for after-born children, however. They are “entitled to an intestate share unless an intention not to provide for the child appears from the will,” or other exception under
It is undisputed appellants were born before O‘Brian executed his Trust. Accordingly, they seek a share of O‘Brian‘s estate under
3. The trial court properly interpreted section 21622
Kimberly and Adam both assert a general disinheritance clause—like the one found in the Trust—cannot defeat a claim under
The principles of statutory construction are well-established. ” ‘We begin by examining the statutory language, giving the words their usual and ordinary meaning.’ ” (Estate of Pryor (2009) 177 Cal.App.4th 1466, 1471.) “The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.) ” ‘If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs. [Citations.]’ ” (Estate of Pryor, at p. 1471.)
“[W]hen the language of a statute is clear, we need go no further.” (Switzer v. Wood (2019) 35 Cal.App.5th 116, 128.) ” ‘If, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.’ ” (Estate of Pryor, supra, 177 Cal.App.4th at p. 1471.) We also need not “follow the plain meaning of a statute when to do so would frustrate the manifest purpose of the legislation as a whole or otherwise lead to absurd results.” (Switzer, at p. 129.) However, ” ‘[t]o justify departing
from a literal reading of a clearly worded statute, the results produced must be so unreasonable the Legislature could not have intended them.’ ” (Ibid.)
a. Section 21622 does not preclude application of a general disinheritance clause
Appellants argue that by separating former section 90 into three separate sections, the Legislature “limited the application of general disinheritance clauses” to claims brought under
The plain language of
In contrast, an omitted child‘s recovery under
decedent must have failed to provide for the unknown child solely because of that lack of awareness (or mistaken belief). The language is clear. Recovery under
Mowry and Della Sala support this interpretation. As appellants note, the court in Mowry explained that by its terms and placement after
The court in Mowry did not conclude, however, that a disinheritance clause cannot demonstrate an intent to omit a living child from a will. To the contrary, the court concluded a will need not express the testator‘s intent to exclude a living child to defeat a claim under
It does not logically follow—as appellants assert—that a will or trust actually expressing the decedent‘s intent to exclude a living child—known or unknown—cannot apply to defeat an omitted child‘s claim under
unknown to him, then the decedent did not fail to provide for an unknown child solely because he was unaware of the child‘s birth.
It would be absurd to read
In short, the trial court did not err in considering the Trust‘s disinheritance provisions to assess whether appellants could state facts showing they were entitled to relief under
Section 21622 requires appellants to plead facts showing O‘Brian was unaware of their existence and his unawareness was the sole reason for omitting them from the Trust
Adam contends the distribution right under
The statute unambiguously carves out a distribution right for unknown children only if they can prove the only reason the decedent did not provide for them was because he did not know they existed.12 Stated another way, to recover under
Adam “has the burden of proof as to each fact essential to his claim for relief.” (Della Sala, supra, 73 Cal.App.4th at p. 470.) As we have discussed, unlike after-born children, the law does not presume living children like appellants were unintentionally omitted because they were unknown. Appellants’
burden of proof, therefore, includes “[O‘Brian‘s] intent in omitting [them] from the will [or trust].” (Mowry, supra, 107 Cal.App.4th at p. 343.) Adam cannot simply plead O‘Brian was unaware of his birth to demonstrate O‘Brian mistakenly omitted him from the Trust, as Adam contends. Rather, as noted, the statute, and authority interpreting it, clearly require the omitted child to prove the decedent‘s only reason for failing to provide for the child was his unawareness of the child or mistake as to his death—not the decedent‘s unawareness or mistake alone. Thus, as the trial court correctly found, to obtain a distribution of the Trust assets contrary to its express terms under
4. The amended petitions do not allege facts sufficient to state a claim for relief under section 21622
a. The Trust‘s disinheritance provisions apply to appellants
The trial court found appellants’ amended pleadings failed to allege facts indicating—or from which the court could conclude—O‘Brian‘s only reason for not providing for them in his Trust was his unawareness of their births. As we discuss below, the court properly took judicial notice of the Trust and considered its terms, some of which were included or referred to in the petitions, in ruling on the demurrers.
First, the court rejected Adam‘s argument that the applicable Trust provisions were ambiguous because the Trust provided specific gifts to specific relatives of O‘Brian while also “excluding any ‘heirs.’ ” We agree with the trial court.
As the court noted, in Article Two of the Trust, O‘Brian stated he was “intentionally not providing for” any person “who claims to be [his] descendant or heir,” and Article 14 expressly conditions O‘Brian‘s intentional omission of “any of [his] heirs who may be living at the date of [his] death” on the phrase, ”[e]xcept as otherwise provided in this Agreement.” (Italics added.) These two provisions are consistent with the specific gifts O‘Brian made to designated relatives. The trust already provides for them, and they already have been deemed—rather than claim to be—heirs or descendants.
Moreover, we concur with the trial court‘s reasoning that the Trust‘s omission of those claiming to be an heir, ”under any circumstances and without regard to the nature of any evidence which may indicate status as a descendent or heir” (italics added) and of “heirs who may be living at the date of [O‘Brian‘s] death” unambiguously reflects O‘Brian‘s intent “to disinherit any heir not provided for, even those he was not aware of.” (See, e.g., Estate of Katleman (1993) 13 Cal.App.4th 51, 60 (Katleman) [“If a testator expresses an intent to disinherit his or her ‘heirs,’ ‘legal heirs,’ ‘relatives’ and the like, such language is generally found sufficient to disinherit a child who was alive at the time the will was executed or a surviving spouse who was then married to the testator.“].)13
Appellants nevertheless contend they cannot be excluded under the Trust because they are not named in the disinheritance clause as are the individuals who allegedly claimed to be O‘Brian‘s children while O‘Brian was alive. But, had O‘Brian intended to limit the disinheritance clauses to those he specifically named, he would not have included the language “any other person who claims to be a descendant or heir” or “any of my heirs” in those provisions. As alleged children about whom O‘Brian was unaware, Kimberly and Adam clearly fall into those13 expressed categories of individuals O‘Brian intended to omit from his Trust.14
This is so even if O‘Brian was mistaken when he declared he had no children. As the trial court concluded, O‘Brian‘s declaration that he has “no children, living or deceased” did not change the Trust‘s intent to disinherit unprovided for known or unknown heirs, like Kimberly and Adam. As the court explained, “[s]imply put, the language of the Trust would clearly not provide for a person in Adam‘s [or Kimberly‘s] circumstances as pled regardless of whether [O‘Brian] was aware of [their] birth[s] at all.”
Accordingly, we conclude the court did not err in finding the disinheritance provisions in the Trust applied to omit Kimberly and Adam, as alleged unknown children of O‘Brian.
b. Appellants failed to allege facts showing O‘Brian would not have excluded them had he been aware of their existence
The trial court also correctly concluded appellants did not allege facts demonstrating O‘Brian would not have disinherited them had he been aware of their births. As the trial court noted, appellants were not required to allege how O‘Brian would have provided for them. But, in light of the Trust‘s disinheritance clauses, to show O‘Brian excluded appellants solely because he was unaware of their births, appellants had to allege facts indicating O‘Brian would not have included the general disinheritance clause had he been aware of their births or—as the trial court put it—“other like situations leading to the conclusion that [O‘Brian] did not provide for [appellants] ‘solely because’ of his unawareness of [their] birth[s].” They did not.
Kimberly supplemented her petition to allege O‘Brian was unaware of her birth at the time he executed his Trust because he “completely forgot about” her due to the passage of time or his cognitive impairment. She also added that, had O‘Brian “actually known” she was “his child [and] had been born at the time he executed his Trust, O‘Brian would have provided for [her]. O‘Brian provided for his brother, sister-in-law, and nieces and nephews.” Kimberly‘s supplemented petition also alleges “O‘Brian failed to provide for [her] in his Trust” and in any applicable will, “solely because O‘Brian was unaware of the birth of [Kimberly] at the time he executed the Trust” and “was unaware that [she] was his child at the time of execution of his Trust.” She alleges O‘Brian “thought that he was without linear issue,” when he executed his Trust. The supplement also states O‘Brian intentionally omitted to provide for Etkes and Venverloh in the Trust, “who claimed to be sons of O‘Brian,” but the Trust does not mention Kimberly.
Adam in turn generally alleges O‘Brian believed he had no children at the time he executed his Trust. He alleges O‘Brian had no knowledge of him, and he did not know O‘Brian was his father until after O‘Brian died. Adam amended his petition to allege, “The sole reason that [O‘Brian] did not provide for [him] in his testamentary documents is because [O‘Brian] was unaware of Adam‘s birth.”
None of these facts demonstrates or leads to a conclusion that O‘Brian would have constructed his Trust differently to provide for Kimberly or Adam had he known they existed at the time he executed the Trust. If anything, the fact that O‘Brian specifically disinherited two individuals—Venverloh and Etkes—whom he was aware claimed to be his sons, supports the opposite conclusion: that O‘Brian also would not have provided for Kimberly (or Adam) had he been aware of her existence at the time. Indeed, in Kimberly‘s initial petition, she alleged she is Venverloh‘s half-sister. Nothing in Kimberly‘s petition suggests O‘Brian would have provided for her when he did not provide for her alleged half-brother.
Similarly, the earlier petition Adam and Venverloh jointly filed alleges Venverloh is O‘Brian‘s biological son, Venverloh informed O‘Brian that he was his son, and O‘Brian denied parentage and told Venverloh that he “had nothing to gain from establishing contact with [Venverloh.]” Again, O‘Brian‘s specific exclusion of Venverloh from his Trust after allegedly being informed of his birth suggests O‘Brian would have treated Adam similarly. It certainly does not support a conclusion that, had O‘Brian been aware of Adam‘s birth, he would have reacted differently and provided for Adam. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 12 [“The general rule . . . is that material factual allegations in a verified pleading that are omitted in a subsequent amended pleading without adequate explanation will be considered by the court in ruling on a demurrer to the later pleading.“])15
Nor does O‘Brian‘s provision for certain relatives in his Trust—his brother, sister-in-law, nieces and nephews—indicate O‘Brian would have provided for children with whom he had no relationship had he been aware of their existence at the time he executed his Trust when he was over 80 years old.
We also conclude Kimberly and Adam did not cure their defective pleadings by conclusorily alleging O‘Brian failed to provide for them solely because he was unaware of their existence. Repeating the statutory requirements does not provide a factual basis for those requirements, particularly when one of them—O‘Brian‘s intent—is negated by the Trust‘s disinheritance provisions. Moreover, as the trustee notes, as a “general rule . . . statutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Adam contends his allegations repeating the requirements for relief under
Adam‘s lack of knowledge does not excuse his failure—or Kimberly‘s—to allege facts supporting his conclusions of law. As the trustee asserts, the trial court did not sustain the demurrers on the ground the petition‘s allegations were uncertain or vague, but because they alleged no factual basis for the assertion O‘Brian‘s unawareness of appellants’ existence was the sole reason he did not provide for Adam or Kimberly. (See Khoury v. Maly‘s of California, Inc. (1993) 14 Cal.App.4th 612, 615-620 [reversing order sustaining demurrer on ground allegations as to nature and duration of oral agreement were uncertain, acknowledging oral contract “may be pleaded generally as to its effect,” but affirming sustaining of demurrer on other tort causes of action for failure to allege a factual basis for the claims beyond generally pleading their elements].)
To overcome the trustee‘s demurrers, appellants had to do more than conclusorily allege O‘Brian failed to provide for them solely because he was unaware of their births when he executed his Trust. “[S]imply parroting the language of [the statute] in the [petition] is insufficient to state a cause of action.” (Hawkins v. TACA Internat. Airlines, S.A. (2014) 223 Cal.App.4th 466, 470-471, 474-476, 478 [rejecting plaintiff‘s contention she need not allege specific facts to state a cause of action against airlines for entering into underfunded contracts in violation of statute when she had not seen the contracts].)
5. Appellants were not entitled to leave to amend again
After sustaining the trustee‘s first demurrers, the trial court gave appellants an opportunity to amend their petitions to allege facts demonstrating O‘Brian excluded them from his Trust for no other reason than his unawareness of their existence. They failed to do so. Nor have appellants indicated how they reasonably might allege a factual basis demonstrating they are entitled to relief under
6. Adam‘s additional contentions
a. Judicial notice of the Trust was proper
Adam contends the trial court prejudicially erred in taking judicial notice of the Trust‘s terms.17 “[A] demurrer may be sustained where judicially noticeable facts render the pleading defective.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 751 (Scott).) Moreover, ” ‘[w]here written documents are the foundation of an action and are attached to the complaint and incorporated therein by reference, they become part of the complaint and may be considered on demurrer.’ ” (Qualcomm, Inc. v. Certain Underwriters at Lloyd‘s, London (2008) 161 Cal.App.4th 184, 191.) “Additionally, judicial notice of matters upon demurrer will be dispositive in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.” (Bridgeman v. Allen (2013) 219 Cal.App.4th 288, 293, fn. 1.) We review the trial court‘s decision to take judicial notice for abuse of discretion. (In re Social Services Payment Cases (2008) 166 Cal.App.4th 1249, 1271.)
The court did not abuse its discretion by considering the Trust, and its terms, filed by the trustee. Without the Trust, appellants would have no claim under
As Adam refers to and relies on the Trust and its terms in his previous and operative petitions, it was appropriate for the court to take judicial notice of it. (See Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 956, fn. 6 [on demurrer, court able to take judicial notice of settlement agreement referred to in complaint]; Estate of Cooper (1983) 142 Cal.App.3d 118, 122 [finding court‘s consideration of probated will and codicil did not “improperly look[ ] beyond the face of the petition” and were subject to judicial notice]; see also Shoemaker v. Myers, supra, 52 Cal.3d at p. 12 [earlier omitted allegations will be considered in ruling on a demurrer to a later pleading].)
Moreover, “where judicial notice is requested of a legally operative document—like a contract—the court may take judicial notice not only of the fact of the document . . . but also facts that clearly derive from its legal effect.” (Scott, supra, 214 Cal.App.4th at p. 754.) In other words, the court may take judicial notice of a ” ‘document‘s legally operative language, assuming there is no genuine dispute regarding the document‘s authenticity.’ ” (Id. at p. 755; see also
Here, no one disputes the Trust‘s authenticity. The attorney who drafted the Trust authenticated the documents he attached as the operative Trust in effect at the time of O‘Brian‘s death. The Trust also has been part of the court file since December 2017. (
When a court takes judicial notice of a document on demurrer, it does not “accept[ ] a particular interpretation of its meaning,” when the meaning is in dispute. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113 (Fremont); StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9.) Contrary to Adam‘s contention, the trial court did not take judicial notice of the meaning or a particular interpretation of the Trust terms. The court considered the terms as stated in the Trust and independently determined whether they precluded appellants from recovering under
And, as noted, the Trust terms are not ambiguous or in conflict with each other. Accordingly, the trial court did not abuse its discretion by taking judicial notice of the Trust and considering its terms.19
b. The court was authorized to consider the demurrers
We also reject Adam‘s contention the court may not consider a demurrer to a probate petition. As Adam acknowledges, the
c. The trial court did not prejudicially err when it did not tell Adam how to amend his petition
For the first time on appeal, Adam contends the trial court did not state the specific grounds on which it sustained the trustee‘s first demurrer with leave to amend in time for Adam to cure the defect. We need not consider objections not made in the trial court. (Cabrini Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal.App.4th 683, 693 [” ‘An appellate court will not consider procedural defects or erroneous rulings where an objection could have been, but was not, raised in the court below.’ “]) Nevertheless, Adam has not demonstrated prejudicial error.
Adam contends the trial court would not tell him how to amend his complaint and did not state its ground for sustaining the demurrer until it issued a Nunc Pro Tunc Order on January 30, 2018, that Adam did not receive until after he filed his second amended petition. Although the court‘s initial minute order, filed January 18, 2018, did not state the ground on which the court sustained the demurrer, at the hearing the court made clear the ground for its ruling was the petition‘s failure to state facts sufficient to state a claim for relief under
The court explained, “if the petitioner can successfully plead entitlement under 21622, then . . . he can state a claim. [¶] I don‘t believe that [Venverloh] can state a cause of action because he was specifically excluded in the trust, and so, therefore, I am denying . . . his petition without leave to amend. [¶] As to . . . Adam, he has pleaded that . . . the Decedent[] had no knowledge of him . . . . He may state a claim. And I am sustaining his petition with leave to amend.” When Adam‘s attorney asked the court what needed to be amended, the court explained, “If [Adam] can form his pleading to include himself in [section] 21622 . . . . I can‘t tell you what‘s missing. But I can tell you that there is room for amendment since it is to be liberally construed.”
Moreover, Adam has not demonstrated prejudice. The trustee‘s only ground for demurring to Adam‘s first amended petition was that the petition “fails to allege facts sufficient to constitute any legal basis for relief.” The trustee‘s memorandum of points and authorities argued the petition could not “satisfy any of the required statutory elements for claiming relief under Section 21622,” the sole basis for Adam‘s claim to a share of the Trust‘s assets.21 Accordingly, Adam was well aware of the ground on which the trustee demurred to the petition and on which the court based its decision to sustain the demurrer with leave to amend. (See Schuetram v. Granada Sanitary Dist. (1964) 229 Cal.App.2d 25, 31 [contention that court erred in failing to state specific ground for sustaining demurrer was “frivolous” where demurrer raised only one ground and no “prejudice resulting from such irregularity” appeared].)
Finally, in his opposition to the trustee‘s demurrer to his second amended petition, Adam quoted from the court‘s Nunc Pro Tunc order and asserted he had cured the defect by alleging, ” ‘The sole reason that [O‘BRIAN] did not provide for [ROSS] in his testamentary documents is because [O‘BRIAN] was unaware of [ROSS]‘s birth.’ ” Adam, however, never argued he was unable to cure the defect identified in the trial court‘s Nunc Pro Tunc Order because he received the order too late. And, “because nothing in the record indicates that [Adam] notified the trial court of its failure to state reasons . . . , [he] waived this requirement.” (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1128, fn. 4.)
d. Adam did not allege a request for relief under section 248
Adam‘s contention that he adequately pleaded a claim under
DISPOSITION
The judgments against Kimberly Rallo and Adam Ross are affirmed. The trustee is to recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.