NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

BEDSWORTH, ACTING P. J.

INTRODUCTION

This appeal concerns a life insurance policy that may or may not exist. Appellant's ex-husband was required to obtain and maintain a $200,000 policy naming her as beneficiary as part of a divorce settlement. After the ex-husband died, appellant demanded the policy proceeds from the trustee of his trust. By the time she got around to filing a court proceeding regarding the policy, however, over a year had passed since her ex-husband's death. The trial court, assuming that the petition was based on a time-barred breach of contract, sustained the trustee's demurrer without leave to amend and entered judgment against appellant.

The appellant's claim based on a breach of contract theory is indeed time-barred. She has, however, stated claims based on constructive trust and resulting trust that were not time-barred. We therefore reverse in part.

FACTS

John and Monika Mohler were married in 1984 and divorced in 1992. A "Marital Termination Agreement" (agreement) incorporated into the divorce judgment required John to maintain a life insurance policy, with Monika as beneficiary, in the amount of at least $200,000. John died on October 5, 2007.

On February 4, 2008, Monika's counsel wrote to Elizabeth Renshaw, successor trustee to John's trust. Monika's counsel identified her as a creditor of John's estate with respect to a life insurance policy "and/or business valuation for Laguna Medical Systems, Inc." The letter announced Monika's intention to file a creditor's claim in the estate and asked for the name of Renshaw's counsel. On February 29, 2008, Monika's counsel wrote again, this time to Renshaw's counsel. This letter reflects some prior communications between counsel; it also alludes to Renshaw's decision not to open probate for John's estate. Monika's counsel again referred to filing a creditor's claim if Renshaw did not pay Monika's claim.

Further correspondence between counsel ensued during March and April, culminating in an e-mail from Renshaw's counsel to Monika's counsel dated April 9, 2008, stating that her claim was probably going to be denied, although they were still looking into it. The record contains no further indication of any communications between counsel until October 21, 2008, when Renshaw's counsel sent an e-mail informing Monika's counsel that the claim was now time-barred under Code of Civil Procedure section 366.2.1

Monika filed a petition for the imposition of a constructive trust, for determination of the title to insurance policy proceeds, and for demand for specific property on November 25, 2008. Her petition included a request to be permitted to file a late creditor's claim. Renshaw demurred on April 7, 2009, and the court sustained the demurrer with leave to amend. Monika filed her first amended petition on May 27, 2009. She added a claim for a resulting trust to her previous requests for relief. Renshaw demurred again, and this time the court sustained the demurrer without leave to amend. Judgment was entered on September 3, 2009. Although the minute order itself did not explain the grounds for sustaining the demurrer, the reporter's transcript reveals that the trial court assumed the entire petition to be founded on a breach of contract and therefore time-barred under section 366.2, which provides a one-year limitations period for claims of personal liability against a deceased person, running from the date of the person's death.

Appellant timely appealed from the judgment of dismissal after the demurrer was sustained without leave to amend.

DISCUSSION

"In reviewing a judgment of dismissal after a demurrer is sustained without leave to amend, we must assume the truth of all facts properly pleaded by the plaintiff-appellant. Regardless of the label attached to the cause of action, we must examine a complaint's factual allegations to determine whether they state a cause of action on any available legal theory. . . . [¶] We will not, however, assume the truth of contentions, deductions, or conclusion of fact or law and may disregard allegations that are contrary to the law or to a fact which may be judicially noticed. When a ground for objection to a complaint, such as the statute of limitations, appears on its face or from matters of which the court may or must take judicial notice, a demurrer on that ground is proper." (Daily Journal Corp. v. County of Los Angeles (2009) 172 Cal.App.4th 1550, 1554-1555.) We review the refusal of the trial court to permit amendment after the sustaining of a demurrer for abuse of discretion. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 110.) The appellant must, however, explain what the proposed amendments are and how they would cure the initial pleading deficiencies. (Ibid.) Monika has not provided this information, either to the trial court or to us.

The trial court sustained Renshaw's demurrer on the theory that Monika's claim was one for breach of contract and therefore time-barred, because she did not file her claim within one year of John's death. Actually, however, Monika's pleading sets forth three possibilities with respect to the insurance policy: (1) John never purchased the policy at all; (2) John purchased the policy and named Monika as beneficiary; or (3) John purchased the policy using Monika's money, but named someone other than Monika as beneficiary. Each one implicates a different legal theory and a separate limitations period. We must assume the truth of all three; Monika is entitled to plead inconsistent causes of action. (Adams v. Paul (1995) 11 Cal.4th 583, 593.) We discuss each possibility in turn.

I. John Never Purchased the Policy

The agreement, incorporated into the divorce judgment, unquestionably required John to insure his life for Monika's benefit in the amount of at least $200,000. Monika, at one time at least, suspected he had not done so.

If Monika's suspicions were correct, then John breached the agreement. Monika would therefore have a claim against John personally for breach of contract. She might also bring an action to enforce the judgment established in the divorce. However denominated, this claim would have to be brought within one year of John's death — no later than October 4, 2008. Monika, however, did not file her petition until November 25, 2008. Under section 366.2, her claim is time-barred.2

In Embree v. Embree (2004) 125 Cal.App.4th 487, the court dealt with a very similar situation. A marital settlement agreement promised the ex-wife an annuity to provide her with a monthly payment for as long as she lived if her ex-husband pre-deceased her. The ex-husband died without purchasing the annuity. His estate was not probated, and the trustee of his trust did not file a notice to creditors under Probate Code section 19100. His property was distributed out of his trust to his widow and children.

The ex-wife waited to file her lawsuit for breach of contract and to impose a constructive trust for over a year and a half after her ex-husband's death. The court held this claim was time-barred. "If the creditor fails to bring a claim against the beneficiaries of the decedent judgment debtor's revocable living trust within one year of the decedent's death, property distributed to the beneficiaries under the terms of the decedent's revocable living trust is protected and cannot be used to satisfy the creditor's judgment." (Embree v. Embree, supra, 125 Cal.App.4th at p. 494.)

In this case, Monika waited to file her petition for constructive trust based on the breach of the agreement until over a year after John's death. Had she acted in time, John's estate could have been charged with the death benefit. (See, e.g., Tintocalis v. Tintocalis (1993) 20 Cal.App.4th 1590, 1592.) Section 366.2, subdivision (a), however, specifically prohibits an action against a decedent "brought on a liability of the person, whether arising in contract, tort or otherwise, and whether accrued or not accrued" unless the action is brought within a year after death. Monika's claim against John on this theory arose in contract and is therefore barred.

II. John Purchased the Policy and Named Monika as Beneficiary

If John purchased the insurance policy per the agreement, with Monika as beneficiary, then Monika has no claim against John at all. He did exactly what he was required to do. The proceeds of the insurance policy are not part of John's estate. (Cramer v. Biddison (1968) 257 Cal.App.2d 720, 726; Prudential Ins. Co. v. Beck (1940) 39 Cal.App.2d 355, 361.) The proceeds belong to Monika. (See, e.g., Comegys v. National Union Assurance Society (1935) 3 Cal.App.2d 637, 641 [life insurance proceeds payable to beneficiary, not creditors and personal representatives].) Her claim is not against John, but against whoever is withholding the policy proceeds from her. (Monika alleges this person is Renshaw.) This is a claim for a constructive trust (Civ. Code, §§ 2223, 2224; Cramer v. Biddison, supra, 257 Cal.App.2d at p. 726), and the limitations period for such a claim is four years. The period began to run when the wrongful act occurred. (Prussing v. Prussing (1941) 46 Cal.App.2d 347, 352). If the proceeds were wrongfully withheld, this cannot have happened before John's death. Monika's claim on this ground is not time-barred. But, of course, this claim presupposes John purchased and maintained an insurance policy with Monika as beneficiary.

III. John Purchased the Policy Using Monika's Money

Finally, Monika alleged that she "provided monies from her community property pursuant to the Agreement to pay for the life insurance policy." She alleged that "[Monika] and [John] agreed that [John] would hold the insurance policy for the benefit of [Monika] and eventually convey the policy to [Monika]." Monika sought, among her other remedies, the imposition of a resulting trust. In fact, her brief on appeal advances only the argument that she is entitled to a resulting trust.3

As noted above, a demurrer requires us to credit all factual allegations, no matter how far-fetched. We also do not need to ponder whether Monika's community assets could really be used to pay for insurance premiums after she was divorced and the community no longer existed. For resulting trust purposes, it does not matter whether the money allegedly used to maintain the policy came from Monika's share of community property or from her post-divorce property. It does not even matter that Monika and John were once married, were divorced, and entered into the agreement as part of their divorce. All that matters is that the money used to pay for the policy was — allegedly — Monika's money.

Monika's claim for a resulting trust, insofar as it differs from her constructive trust claim, assumes the existence of an insurance policy in John's name on his life with somebody other than Monika as beneficiary. (If she were the beneficiary, the constructive trust theory would apply; Monika would be entitled to the proceeds regardless of whether she or John paid for the policy.) This policy, although in John's name, was maintained with Monika's money, i.e., Monika somehow paid for the premiums on it. If Monika can prove the facts necessary to establish a resulting trust, however, her remedy is not damages payable from John's assets, but rather legal ownership of the policy.

Estate of Yool (2007) 151 Cal.App.4th 867, on which Monika heavily relies, provides the paradigm for a resulting trust in a probate context. In Estate of Yool, a mother and a daughter took title to a house. After the mother died, the daughter asserted that the mother "had provided no consideration for the property, never intended to take beneficial title, and accepted legal title as a mere accommodation to facilitate financing." (Id. at p. 871.) The daughter asserted a resulting trust in her favor, and both the trial court and the Court of Appeal agreed with her. She received title to the house. Moreover, the courts agreed, over the objection of the decedent's other children, that the petition to determine title to the property was not time-barred.

As the appellate court explained, "[T]he relationship between resulting trustee and beneficiary arises where one, in good faith, acquires title to property belonging to another. The law implies an obligation on the part of the one in whom title has vested to hold the property for the owner's benefit and eventually convey it to the owner. The trustee has no duties to perform, no trust to administer, and no purpose to pursue except the single purpose of holding or conveying the property according to the beneficiary's demands." (Estate of Yool, supra, 151 Cal.App.4th at p. 874.) The limitations period on an action to establish a resulting trust is four years. (Id. at p. 875; § 343.) It begins to run when the trustee repudiates the trust. (Id. at p. 876.) Repudiation occurs when the beneficiary demands the property from the trustee and the trustee refuses to convey the property or account for it. (Id. at p. 875.) The one-year limitations period of section 366.2 does not apply because the claim is not based on the decedent's personal liability and does not contemplate a raid on his or her assets. By definition, an action for a resulting trust seeks only to convey legal title to property that the claimant (not the decedent) already beneficially owns. (Estate of Yool, supra, 151 Cal.App.4th at pp. 875-876.)

Monika's resulting trust claim is sufficiently, if rather haphazardly, pleaded. It is not our task at the demurrer stage to speculate about whether she can prove her money paid for the policy premiums. But we can say at the demurrer stage that her remedy under Estate of Yool is not money damages, but title to the policy. And her claim, based on the existing pleading, is not time-barred.

IV. Legal and Equitable Remedies

Renshaw argues that Monika cannot obtain an equitable remedy because she had a remedy at law — an action for breach of contract. Assuming this argument is correct (but see Nelson v. Nevel (1984) 154 Cal.App.3d 132, 140), it applies only to Monika's breach of contract claim — her claim against John for not buying the policy. It does not apply to the constructive trust or the resulting trust claims, at least at the pleading stage.

Monika's constructive trust claim is not against John, and, under the facts as alleged, he did not breach the agreement. He bought the policy, and someone else (allegedly Renshaw) is withholding the proceeds from Monika. Monika has no remedy at law against Renshaw for breach of contract.

Monika likewise would have had a remedy at law against John if he had breached his duty as resulting trustee of the insurance policy bought with Monika's money — if he had conveyed title to the policy to someone else or refused to sign it over to her when she demanded it. But nothing in the petition alleges any such breach. Once again, Monika's only remedy on these facts is a resulting trust giving her title to the policy; there was no remedy at law.

V. Judicial Estoppel

Renshaw also asserts Monika is judicially estopped from asserting she used community funds to purchase the insurance policy because the divorce, which Monika sought and obtained, effectively did away with community property. But, as stated above, the source of the funds allegedly used to purchase the policy is immaterial. Monika could easily amend her petition to eliminate references to community funds and still state a claim for a resulting trust.4 Furthermore, although it is true, as Renshaw states, that "John's life insurance policy was awarded to him as his separate property," this fact does not preclude Monika from alleging she paid the premiums on a subsequently purchased policy on his life. The policy at issue in her petition was not supposed to be purchased until 18 months after the divorce. Any life insurance awarded to John in the divorce had to be existing life insurance. The award of a life insurance policy through the divorce has no bearing on the subsequent purchase of life insurance pursuant to section 25.4 of the agreement.

VI. Equitable Tolling and Equitable Estoppel

Although Monika argued in the trial court that the limitations period should be equitably tolled and that Renshaw should be equitably estopped from asserting the limitations period, she has not argued either legal issue before this court. We therefore treat each one as abandoned. (McGettigan v. BART Dist. (1997) 57 Cal.App.4th 1011, 1016.)

DISPOSITION

We affirm the trial court's order that petitioner's cause of action for breach of contract is time-barred, but reverse the judgment of dismissal and reinstate petitioner's causes of action for constructive trust (based on the purchase of the life insurance policy with her as beneficiary) and resulting trust. The parties are to bear their own costs on appeal.

WE CONCUR:

O'LEARY, J.

ARONSON, J.