THOMPSON, J.
Plaintiff and appellant Erlend M. Olson (plaintiff) filed an action against defendants and respondents Snell & Wilmer, LLP, Roger Grad, and Mark Ziemba (collectively Snell) for legal malpractice, breach of fiduciary duty, and aiding and abetting fraud, breach of fiduciary duty, fraudulent transfer, and conversion allegedly committed by plaintiff's estranged wife, Jana Olson (Olson).
Plaintiff appeals,
Pursuant to our de novo review we conclude the action is barred by the statute of limitations. Further, the causes of action fail to state sufficient facts to constitute causes of action. Thus, we affirm.
According to the third amended complaint (TAC),
The TAC alleged on information and belief that beginning in 2005 Olson devised a plan to defraud plaintiff and creditors by hiding assets. Plaintiff pleaded on information and belief all defendants
As alleged in the TAC, beginning in 2006 Bohm and Matsen helped plaintiff and Olson set up an estate plan, including several domestic and foreign trusts, limited liability companies (LLC's), and corporations (collectively Estate Plan). Most of the assets plaintiff had put into the Trust were transferred to the Estate Plan.
As the TAC alleged on information and belief, in 2009 Bohm and Matsen formed the MIYIM 2009 Cook Islands Trust (MIYIM), of which Olson was the settlor and beneficiary. Plaintiff did not know of this transaction.
The TAC alleged that in setting up the Estate Plan, Matsen saw plaintiff execute documents and he and Bohm "had numerous accurate exemplars" of plaintiff's signature. In addition, plaintiff told Matsen all the assets being transferred to the Estate Plan were his separate property, not community property or gifts of his separate property to Olson. Plaintiff also told Matsen Olson had no assets at the time she married him and was not contributing anything to the Estate Plan.
The TAC further alleged on information and belief defendants aided and abetted Olson's plan by establishing and dissolving several foreign trusts, corporations, and LLC's controlled by Olson. This was also unknown to plaintiff. The TAC alleged on information and belief defendants knowingly aided and abetted Olson in setting up numerous bank accounts. The TAC further alleged on information and belief defendants knew plaintiff and Olson separately controlled their individual finances and filed separate tax returns.
The TAC alleged plaintiff gave Olson authority to assist with day-to-day management of the assets in the Estate Plan but gave her no unilateral control. On information and belief plaintiff pleaded defendants knew plaintiff never gave complete control of the assets to Olson.
Plaintiff alleged on information and belief "[d]efendants each, or some combination thereof," took actions to further Olson's plan to fraudulently transfer plaintiff's assets, including: 1) from at least 2009 and maybe earlier used the United States Postal Service or other carriers to deliver packages and communications "to divert and convey assets"; 2) from at least 2009 and maybe earlier transmitted "writings, signs, signals, pictures, or sounds" by "wire, radio, e-mail, telephone or television" to execute Olson's plan; and 3) from 2009 forward "entered into transactions" from within the United States to outside the United States to steal plaintiff's property with the intent to conceal the proceeds. As to all of these acts, plaintiff alleged he did not know exactly which defendants participated but believed he would learn additional facts in discovery.
On information and belief plaintiff alleged both Snell and Bohm and Matsen knowingly aided and abetted forming and/or funding a bank account to facilitate Olson's plan and were paid a fee. The TAC further alleged on information and belief defendants aided and abetted Olson in causing false tax reporting documents to be sent to Olson to conceal "the true status" of the Trust and Estate Plan.
According to the TAC, in 2009 the plaintiff and Olson separated and in 2012 plaintiff filed a dissolution action. After their separation plaintiff and Olson met with Snell. Snell demanded plaintiff "cede control" over a large portion of the assets he had put in the Estate Plan. Snell also demanded plaintiff pay substantial child and spousal support. Plaintiff refused and told Snell he would not transfer any assets to Olson or any entity she controlled.
The TAC alleged that between April 2010 and June 2011 Snell aided and abetted Olson in transferring Estate Plan assets to MIYIM in direct violation of Olson's fiduciary duties to plaintiff. It further pleaded on information and belief Snell prepared, reviewed, and transmitted documents with forged signatures of plaintiff or his father. These documents were used by Olson to transfer plaintiff's assets from the Estate Plan. Allegedly, Snell knew or should have known some of the documents had forged signatures.
Plaintiff also alleged on information and belief defendants helped Olson create a fraudulent prenuptial agreement.
According to the TAC in February 2010 plaintiff, Olson, and four of Olson's LLC's were sued. Plaintiff alleged on information and belief he could have settled the action for under $2 million if he had had the assets Olson had diverted. Instead he could not afford to retain a lawyer. As a result a judgment of more than $6 million was entered against him.
Plaintiff pleaded he first knew of the alleged wrongdoings during his deposition in June 2014 when he learned of forged documents.
The cause of action for aiding and abetting Olson's fraud alleged on information and belief all defendants committed the acts described above to further Olson's plan with the actual intent to defraud plaintiff. The cause of action for aiding and abetting breach of fiduciary duty similarly pleaded defendants committed the alleged acts to knowingly aid and abet Olson's breach of her marital fiduciary duty. Finally, the cause of action for aiding and abetting conversion pleaded when defendants committed the alleged acts, they knowingly aided and abetted Olson's conversion of plaintiff's assets from the Estate Plan.
Snell demurred on the grounds each cause of action failed to state sufficient facts to constitute a cause of action and each was barred by the statute of limitations. Snell maintained the causes of action for aiding and abetting breach of fiduciary duty and conversion were governed by the one-year statute of limitations (§ 340.6(a)) for actions against attorneys not based on actual fraud. The complaint alleged plaintiff had actual knowledge of defendants' alleged wrongful acts in June 2014, but plaintiff did not file the action until December 2015.
Snell also asserted the three-year statute for fraud (§ 338(d)) applied to the cause of action for aiding and abetting fraud, and argued plaintiff had inquiry notice of the alleged fraud more than three years before filing the complaint.
Snell further argued the TAC did not plead facts showing it knowingly aided Olson in committing the alleged torts. Nor did plaintiff allege facts that Snell breached a duty to him. Finally, it contended the fraud cause of action was not pleaded with sufficient particularity.
Plaintiff disputed these claims and argued the appropriate statute of limitations was three years from the date of actual knowledge under section 1101(d), which deals with breach of the marital fiduciary duty. He also claimed section 338(d), the statute of limitations for fraud, also applied to all of the aiding and abetting causes of action since all were based on Olson's conduct in defrauding plaintiff. He further maintained all causes of action were timely because he filed the action within 18 months of actual knowledge of Olson's and defendants' alleged wrongdoing. Finally, he argued he had pleaded sufficient facts to state the causes of action.
Snell responded that the one-year statute under section 340.6(a) applied because there were no allegations it had committed any fraud. It also argued the statute of limitations began to run when plaintiff was put on inquiry notice he had been harmed, even if he did not have actual knowledge of Snell's alleged misconduct.
In sustaining the demurrers the court ruled the applicable statute of limitations for aiding and abetting fraud is three years from the date plaintiff discovered the fraud. (§ 338(d).) The statute of limitations on a cause of action against a lawyer for aiding and abetting not based on fraud is the earlier of one year after plaintiff discovered, or reasonably diligently should have discovered, the wrongful acts or four years from the date of the wrongful act. (§ 340.6(a).)
The court found the TAC showed plaintiff knew of Olson's fraudulent acts and conversion more than three years before he filed the action. Plaintiff's allegation he had actual knowledge less than one year before he filed the action did not matter. The discovery rule provides the statute of limitations began to run when plaintiff suspected or should have suspected a party had harmed him. The minute order further stated there was no authority for applying the three-year statute of limitations in section 1101(d), governing breach of fiduciary duty by a spouse.
Given this was the third amended complaint and plaintiff had had leave to amend to address the statute of limitations, the court sustained the demurrer without leave to amend.
We review a judgment after order sustaining a demurrer without leave to amend de novo. (Del Cerro Mobile Estates v. City of Placentia (2011) 197 Cal.App.4th 173, 178.) "`[W]e treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law'" (National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 43) or speculative allegations (Rotolo v. San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 318, disapproved on another ground in Verdugo v. Target Corp. (2014) 59 Cal.4th 312, 333, 334, fn. 15). "[W]e give the complaint a reasonable interpretation, and read it in context." (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) If the demurrer can be sustained on any ground raised, we must affirm. (Ibid.)
Liability for aiding and abetting a tort may be imposed on one who "`"knows the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act."'" (Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1144.) In an aiding and abetting cause of action, "[k]knowledge is the crucial element." (Id. at p. 1145.) "`[A]iding and abetting . . . necessarily requires a defendant to reach a conscious decision to participate in tortious activity for the purpose of assisting another in performing a wrongful act.'" (Id. at p. 1146.)
The three causes of action at issue here fail to sufficiently plead a claim. As noted, there were only six allegations specific to Snell: on information and belief Snell assisted Olson in setting up a bank account at Capital Security Bank to facilitate Olson's plan and was paid a fee; in 2010 Snell met with plaintiff and Olson, demanding plaintiff cede control of a large portion of the assets in the Estate Plan and pay substantial amounts to Olson for child and spousal support; despite knowing plaintiff did not agree to transfer assets from the Estate Plan, Snell aided and abetted Olson in transferring assets from the Estate Plan to MIYIM; on information and belief, Snell prepared and transmitted documents with plaintiff's forged signature that effected a transfer of all of plaintiff's assets in the Estate Plan; and on information and belief, Snell continued aiding and abetting Olson in furtherance of her plan.
As to the allegations alleging acts committed by generic defendants there were only four paragraphs not pleaded on information and belief: "Said [d]efendants are known to have participated directly or indirectly in [Olson's] scheme"; "[d]efendants had actual knowledge" about Olson's fiduciary duties to plaintiff along with her plans to defraud him; and defendants committed acts alleged to knowingly aid and abet breach of Olson's fiduciary duty and conversion. The remainder of the allegations as to defendants, the substantial bulk of the TAC, are all pleaded on information and belief.
A "`"[p]laintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true"' [citation], and thus a pleading made on information and belief is insufficient if it `merely assert[s] the facts so alleged without alleging such information that "lead[s] [the plaintiff] to believe that the allegations are true."'" (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158-1159.)
Here, plaintiff did not allege the information leading him to believe the allegations against Snell specifically or Snell as a generic defendant were true. And the few specific allegations as to Snell are not sufficient to state a claim.
Aside from the allegation Snell helped Olson set up a bank account at Capital Security Bank, the TAC contains no further allegation as to that account or that Olson ever used it in any way. There are no facts Snell's demand that plaintiff cede control over his assets and pay support facilitated Olson's alleged plan.
Further, there are no allegations Snell knew assets in the Estate Plan belonged solely to plaintiff or that Olson had no right to them. The TAC alleged that Bohm and Matsen set up the Estate Plan and plaintiff told Matsen the assets being transferred in belonged to him and not Olson. There is no allegation Snell was given any of this information.
Further, the TAC alleged Olson claims the assets in the Estate Plan are her separate property or are community property. Snell was entitled to believe Olson's account of the ownership of the assets. (See Daniels v. Robbins (2010) 182 Cal.App.4th 204, 223 ["In general, a lawyer `is entitled to rely on information provided by the client'"; malicious prosecution action].) If Snell believed the assets were owned by Olson, it could not have consciously decided to assist her to harm plaintiff. Since knowledge of the wrongdoing is the paramount allegation of an aiding and abetting cause of action, its absence is fatal to plaintiff's claims.
In addition, the TAC alleges Bohm and Matsen had seen plaintiff's signature. There is no similar allegation to support the allegation on information and belief that Snell prepared or transmitted documents containing plaintiff's forged signature.
As this was the third amended complaint, plaintiff had four opportunities to plead sufficient facts to state a cause of action against Snell. Plainly, he was unable to do so. The demurrer was properly sustained without leave to amend.
An action against an attorney for wrongful conduct, other than actual fraud, must be brought within one year after a plaintiff learns, or acting reasonably diligently should have learned, of the misconduct. (§ 340.6(a).) "[B]ased on its plain language, section 340.6 applies to all actions `against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services.'" (Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 818, 819 [action against lawyer for aiding and abetting breach of fiduciary duty, interference with contract and prospective economic advantage, and unjust enrichment].)
Relying on Lee v. Hanley (2015) 61 Cal.4th 1225 (Lee), plaintiff argues section 340.6 does not apply because Snell's alleged wrongful acts did not arise in the performance of its professional duties. In Lee, the court held section 340.6(a) "applies to claims whose merits necessarily depend on proof that an attorney violated a professional obligation in the course of providing professional services. In this context, a `professional obligation' is an obligation that an attorney has by virtue of being an attorney, such as fiduciary obligations, the obligation to perform competently, the obligation to perform the services contemplated in a legal services contract into which an attorney has entered, and the obligations embodied in the State Bar Rules of Professional Conduct. By contrast, as the Court of Appeal observed, section 340.6(a) does not bar a claim for wrongdoing—for example, garden-variety theft—that does not require proof that the attorney has violated a professional obligation, even if the theft occurs while the attorney and the victim are discussing the victim's legal affairs. Section 340.6(a) also does not bar a claim arising from an attorney's performance of services that are not `professional services,' meaning `services performed by an attorney which can be judged against the skill, prudence and diligence commonly possessed by other attorneys.'" (Lee, at pp. 1236-1237.)
Plaintiff points to alleged wrongful acts such as using the mail and e-mail, entering into transactions outside the United States, establishing trusts and LLC's, and opening a bank account, arguing those acts could have been performed by nonlawyers. Thus, he contends, they do not fall within the definition of professional services.
But these acts are incidental to and resulting from professional services Snell provided to Olson. Snell would not have been using the mail or the Internet on Olson's behalf had it not been representing her. As stated in Lee, supra, 61 Cal.4th 1225, "the attorney-client relationship often requires attorneys to provide nonlegal professional services such as accounting, bookkeeping, and holding property in trust. [Citation.] Indeed, the training and regulation that make the practice of law a profession, as well as the grounds on which an attorney may be disciplined as an attorney, include professional obligations that go beyond duties of competence associated with dispensing legal advice or advocating for clients in dispute resolution. [Citation.] In light of the Legislature's intent that section 340.6(a) cover more than claims for legal malpractice, the term `professional services' is best understood to include nonlegal services governed by an attorney's professional obligations." (Id. at p. 1237, italics omitted.)
And plaintiff himself acknowledged this when he stated in his brief, "In doing the acts alleged in the [TAC, Snell] may have provided professional services to [Olson], i.e., just doing their job as lawyers. Yet, just doing their job was a critical part of aiding and abetting [Olson's] intentional and fraudulent concealment of [plaintiff's] assets." Thus, plaintiff's attempts to recharacterize Snell's actions as something other than the performance of professional services to take them out of section 340.6(a) fails. (Foxen v. Carpenter (2016) 6 Cal.App.5th 284, 292.)
Alternatively, plaintiff contends section 340.6(a) does not govern because the gist of the action is based on Snell's alleged aiding and abetting Olson's actual fraud. He argues he never alleged Snell participated in "`non-fraud aiding and abetting.'" Plainly, that is not correct.
In addition to his cause of action for aiding and abetting fraud, plaintiff alleged causes of action for aiding and abetting conversion and aiding and abetting breach of fiduciary duty. Those are not actual fraud causes of action.
Plaintiff's reliance on Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303 (Stueve) is misplaced. It is true the case stated section 340.6(a) did not apply to a cause of action for fraud against a law firm. But it also held section 340.6(a) did apply to causes of action for negligent misrepresentation and constructive fraud. (Stueve, at p. 322.)
Where there is a fiduciary relationship, as between the spouses here, breach of fiduciary duty is a species of constructive fraud. (Mark Tanner Construction, Inc. v. HUB Internat. Ins. Services, Inc. (2014) 224 Cal.App.4th 574, 588.) Thus, section 340.6(a) applies to the breach of fiduciary duty cause of action as well as the conversion claim. Moreover, as discussed below in section 4, even if we consider the entire claim to rest on actual fraud, under section 338(d) the action is still barred.
Plaintiff also argues section 340.6(a) does not apply because certain of defendants' alleged acts would violate federal criminal law. These allegedly include wire fraud, tax evasion, and money laundering. But the TAC does not include causes of action based on that alleged wrongdoing.
Further, even a cursory review of the TAC shows it did not sufficiently plead such claims. For example, under Sebastion International, Inc. v. Russolillo (2001) 128 F.Supp.2d 630, 634-635, mail fraud (18 U.S.C. § 1341) must be alleged with particularity, including the identity of specific parties to the fraud and the time, place, and specific content of each transmission. The allegation that "Defendants" knowingly transmitted communications to further Olson's plan is not sufficient.
The same is true for tax evasion where plaintiff merely alleged defendants "caused false tax reporting documents to be sent to" Olson. (Phan v. Best Foods International Inc. (N.D.Cal., July 29, 2014, Civ. No. CV14-00888 RS) 2014 WL 3749988, * 5 ["extremely broad averment of tax evasion does not satisfy [Fed. Rules Civ. Proc., 28 U.S.C.] Rule 9(b)'s heightened pleading standard"].) And there were no allegations as to Snell even remotely connected to money laundering, the only broad allegation referring solely to Bohm and Matsen.
Even if section 340.6(a) does not apply, all the claims are still barred.
Here the causes of action accrued more than three years before plaintiff filed the action. The TAC alleged that in early 2010 when plaintiff and Olson met with Snell, Snell "demanded that [plaintiff] cede control over substantial portions of the assets" he had transferred to the Estate Plan. Plaintiff refused and told Snell he did not agree to transfer any of the assets from the Estate Plan to Olson or any entity she controlled.
The TAC further alleged that in 2010 when plaintiff was sued, he did not have funds to pay for counsel. It also pleaded that if plaintiff had the assets he alleged Olson took from him, he could have settled the case for under $2 million. Instead, a judgment over $6 million was entered against him in 2012.
Those facts show plaintiff knew wrongful acts had been committed in 2010. According to the TAC, plaintiff transferred $35 million to the Estate Plan. Most of that amount would have to have been gone if plaintiff could not even afford to hire counsel. Yet plaintiff did not file the action until December 30, 2015.
Plaintiff's claim he did not know of Olson's and defendants' alleged wrongdoing until June 2014 when he learned of forged documents does not save the TAC. That is a general allegation of knowledge contradicted by more specific factual allegations of what occurred.
"Where a pleading includes a general allegation, such as an allegation of an ultimate fact, as well as specific allegations that add details or explanatory facts, it is possible that a conflict or inconsistency will exist between the general allegation and the specific allegations." (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1235.) In that instance we rely on the principle that "specific allegations in a complaint control over an inconsistent general allegation." (Id. at p. 1236.)
The specific allegations of what plaintiff knew in 2010 in connection with the lawsuit take precedence over the more general allegation that he first knew of the wrongful acts in 2014 when he learned about alleged forged documents. Further, forged documents were merely the alleged method of committing the alleged misconduct. A plaintiff does not need to know the mechanism of the wrongful conduct, only that it occurred. "`Aggrieved parties generally need not know the exact manner in which their injuries were "effected."'" (Vaca v. Wachovia Mortgage Corp. (2011) 198 Cal.App.4th 737, 744 (Vaca).)
Additionally, the allegations regarding the absence of money in 2010 are a judicial admission of plaintiff's knowledge and bind him. (Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271.)
It also does not matter that plaintiff might not have been aware Snell was involved at that point. "`[I]gnorance of the identity of the defendant is not essential to a claim and therefore will not toll the statute.'" (Vaca, supra, 198 Cal.App.4th at pp. 743-744.) "[E]ven if plaintiff was ignorant of defendant['s] role in the fraud, . . . [he] had discovered facts sufficient to apprise [him] of [his] injury and start the limitations period on [his] causes of action." (Id. at p. 744.)
We reject plaintiff's argument the existence of a fiduciary duty eliminates his inquiry duty. (Hobbs v. Bateman Eichler, Hill Richards, Inc. (1985) 164 Cal.App.3d 174, 201-202.) First, the complaint shows plaintiff had actual knowledge, and not just inquiry notice. Second, Snell was never plaintiff's fiduciary and nothing in the complaint alleges Snell had custody or control over plaintiff's property.
Plaintiff argues neither section 340.6(a) nor section 338(d) applies and instead contends the action is governed by section 1101(d). We disagree.
Family Code section 1101, subdivision (a) states, "A spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse's present undivided one-half interest in the community estate, including, but not limited to, a single transaction or a pattern or series of transactions, which transaction or transactions have caused or will cause a detrimental impact to the claimant spouse's undivided one-half interest in the community estate." The action must be filed "within three years of the date a petitioning spouse had actual knowledge that the transaction or event for which the remedy is being sought occurred." (§ 1101(d)(1).)
Plaintiff contends the statute of limitations for aiding and abetting is the same as that of the underlying tort. (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1478.) Thus, he concludes, the statute of limitations in section 1101(d) applies. This argument is flawed.
A correct statement of the rule is that the statute of limitations for aiding and abetting is "generally" the "same as the underlying tort." (American Master Lease LLC v. Idanta Partners, Ltd., supra, 225 Cal.App.4th at p. 1478.) And it should not apply here. The statute of limitations in section 1101(d) is completely dependent upon the unique relationship between spouses. Plaintiff's claims against Olson are based on duties personal to her resulting from her status as plaintiff's wife. There is no such special relationship between plaintiff and Snell. Plaintiff has cited no authority for his theory, and we see no basis to somehow expand the spousal duty by subjecting Snell to the statute of limitations governing actions between spouses.
We agree with Snell that application of this statute to lawyers would reduce the protection afforded them by section 340.6(a) and put family law lawyers in a class separate from attorneys who handle other types of matters. When Code of Civil Procedure section 340.6 was proposed "the Legislature's primary focus was establishing a new limitations period for legal malpractice." (Lee, supra, 61 Cal.4th at p. 1235.) The statute was enacted "amid rising legal malpractice insurance premiums" with the intent to "`reduce[] the cost of legal malpractice insurance' and `limit[] the open-endedness' of the various limitations periods for claims against attorneys." (Id. at pp. 1233, 1234.) Application of section 1101(d) to the facts in this case would turn that protection on its head and lead to an absurd result.
We are not persuaded by the argument section 1101(d) should control over section 338(d) because the former section is more specific than the latter. That might apply in actions against a spouse. But in this complaint against attorneys that rule has no application for the reasons stated above. Plaintiff claims the legislative intent in enacting the Family Code was "to address comprehensively the numerous, complex and emotionally fraught issues relating to husbands and wives and their children." This very argument emphasizes our point. The Family Code deals with spouses, not spouses' lawyers.
Further, section 1101(d) applies only to actions between spouses as to impairment of community property. (Fam. Code, § 1101, subd. (a); In re Marriage of Simmons (2013) 215 Cal.App.4th 584, 593.) Plaintiff was quite clear in the TAC that Olson allegedly absconded with his separate property. He alleged none of the property was community.
We also disagree with plaintiff's contention that forcing a spouse to sue the other spouse's attorney before being required to sue the spouse interferes with the public policy of preserving the family unit. The real problem here is that plaintiff is trying to graft the Family Code onto a claim against lawyers arising out of performing their professional services. Whether section 340.6(a) or 388(d)
Plaintiff claims "[one] `who aids, abets, . . . the commission of an [illegal] act is as responsible for that [illegal] act as if he [or she] committed it directly.'" (Nye & Nissen v. United States (1949) 336 U.S. 613, 619.) Thus, he argues, Snell is liable for Olson's acts as if it committed those acts. But by its terms, this doctrine deals with liability, not the statute of limitations.
Finally, even if we were to apply section 1101(d), plaintiff's action would still be barred. Here, as discussed above, the TAC makes clear that by 2010 plaintiff had actual knowledge of Olson's alleged diversion of his assets from the Estate Plan. As he alleged, plaintiff had ceded co-management of the Estate Plan to Olson. At the time he was sued, out of his $35 million estate plaintiff did not have sufficient funds to retain counsel to defend him in a lawsuit. Nor could he offer $2 million to attempt to settle the matter. Thus the action was untimely because he had actual knowledge of the alleged wrongful conduct more than three years before he filed the complaint.
Section 1101(d)(2) does not change things. That section provides "[a]n action may be commenced under this section upon the death of a spouse or in conjunction with an action for legal separation, dissolution of marriage, or nullity without regard to the time limitations set forth in paragraph (1)." Plaintiff argues this section indefinitely extended the time for him to file an action against Olson, "and thus [against Snell]." Plaintiff is wrong.
Section 1101(d)(2) is an exception to the three-year statute in subdivision (d)(1). Both of them deal with "an action commenced under subdivision (a)" (italics added), which deals with one spouse's claim against the other for interference with the claimant's one-half interest in community property. This gives plaintiff no rights against Snell.
Except for a passing reference in oral argument, plaintiff did not seek leave to amend the TAC. His only arguments are that the court applied the wrong statute of limitations and that he sufficiently pleaded the elements of his causes of action.
Even if he had, to be granted leave to amend, a plaintiff must demonstrate how the complaint could be pleaded to state a valid cause of action. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) "`To satisfy that burden on appeal, a plaintiff "must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading." [Citation.] . . . The plaintiff must clearly and specifically set forth the "applicable substantive law" [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, the plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague or conclusionary. [Citations]'" (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1491.)
Since plaintiff has not shown what he would plead that would allege a valid cause of action there is no basis to grant leave to amend.
The judgment is affirmed. Snell is entitled to costs on appeal.
O'LEARY, P. J. and FYBEL, J., concurs.
