Turner – Conservatorship

“Claim preclusion prevents relitigation of entire causes of action. [Citation.] It applies only when ‘a second suit involves (1) the same cause of action (2) between the same parties [or their privies] (3) after a final judgment on the merits in the first suit.’” (Samara v. Matar (2018) 5 Cal.5th 322, 326–327.) For claim preclusion purposes, “a ‘cause of action’ is comprised of a primary right possessed by the plaintiff, a corresponding duty imposed upon the defendant, and a wrong done by the defendant which is a breach of such primary right and duty.

The primary right is the plaintiff’s right to be free of the particular injury, regardless of the legal theory on which liability is premised or the remedy which is sought. Thus, it is the harm suffered that is the significant factor in defining the primary right at issue.” (City of Oakland v. Oakland Policy & Fire Retirement System (2014) 224 Cal.App.4th 210, 228.) None of the causes of action asserted in the Petition were raised in the 2nd Accounting. Accordingly, the doctrine of claim preclusion does not apply.

To the extent Respondent is arguing issue preclusion (formerly collateral estoppel), the argument is equally unavailing. The doctrine of issue preclusion applies “(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 825.) “‘[A]n issue was actually litigated in a prior proceeding if it was properly raised, submitted for determination, and determined in that proceeding.’” (In re Marriage of Brubaker & Strum (2021) 73 Cal.App.5th 525, 537.) The issue of the change of beneficiaries was not properly raised, actually litigated or necessarily decided in connection with the court’s approval of the 2nd Accounting.

In fact, pursuant to Probate Code section 2459(c), Respondent was required to petition the court for authority before changing the beneficiaries. Section 2459(c) reads, in relevant part: “[t]he right to . . . change beneficiaries . . . may be exercised by the conservator only after authorization or direction by order of the court, except as permitted in Section 3544.5. To obtain such an order, the conservator or other interested person shall petition under Article 10 (commencing with Section 2580 [regarding substituted judgments]).” Respondent did not petition the court under section 2580 et seq. for authority to change the beneficiaries and the change was never authorized by this court.

Accordingly, even if a single page of an exhibit—without any context or explanation—could bar a subsequent claim under the doctrines of claim or issue preclusion, it would not do so here where Respondent failed to comply with her statutory obligations. (Conservatorship of Coffey (1986) 186 Cal.App.3d 1431, 1438 [“The order of the probate court settling appellant's account, like an order settling the account of a trustee, executor or administrator, is conclusive as to all matters passed upon but is not binding as to those matters not passed upon”].)

The demurrer is OVERRULED on the ground of claim preclusion.

Time-Bar. Respondent argues the same single page of the exhibits to the 2nd Accounting provided actual or inquiry notice to Petition such that the claims are now time-barred. The Petition, however, asserts Petitioner did not have notice of the change until 2025 when Respondent’s counsel told her the beneficiaries had been changed. For purposes of a demurrer, that assertion must be accepted as true.

A claim traditionally accrues “‘when “[it] is complete with all of its elements”—those elements being wrongdoing, harm, and causation.’” (Aryeh v. Cannon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) The delayed discovery rule, however, “postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) “Under the [delayed] discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” (Jolly v.

Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110.) To sufficiently allege delayed discovery, a plaintiff “‘must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’ [Citation.] In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to ‘show diligence’; ‘conclusory allegations will not withstand demurrer.” (Fox, supra, 35 Cal.4th at p. 921.) The allegations of the Petition are sufficient to allege delayed discovery.

Further, “‘[a] demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.’” (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 342.)

The demurrer is OVERRULED on statute of limitations grounds.

Unjust enrichment. Respondent demurs to the third cause of action on the ground unjust enrichment is not a cause of action under California law. While some courts have held that unjust enrichment is not a cause of action (see Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1138; Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370), other courts have recognized it as a proper claim (see Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593 [holding by the Fourth Appellate District that “[t]he elements of an unjust enrichment claim are the “receipt of a benefit and [the] unjust retention of the benefit at the expense of another”); Professional Tax Appeal v.

Kennedy-Wilson Holdings, Inc. (2018) 29 Cal.App.5th 230, 238 [“The elements of a cause of action for unjust enrichment are simply stated as “receipt of a benefit and unjust retention of the benefit at the expense of another.”]; Lyles v. Sangadeo-Patel (2014) 225 Cal.App.4th 759, 769 [“The elements for a claim of unjust enrichment are ‘receipt of a benefit and unjust retention of the benefit at the expense of another.’ [Citation.] ‘The theory of unjust enrichment requires one who acquires a benefit which may not justly be retained, to return either the thing or its equivalent to the aggrieved party so as not to be unjustly enriched’”].)

The demurrer to the third cause of action is OVERRULED on this ground.

Breach of Fiduciary Duty and Intentional Mismanagement. Respondent demurs to the first cause of action for breach of fiduciary duty on the ground she did not owe any fiduciary duty to Petitioner and to the fourth cause of action on the ground that intentional mismanagement is not a cause of action. “If the [petition] states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the [petition] is good against a demurrer. ‘[W]e are not limited to plaintiffs' theory of recovery in testing the sufficiency of their [petition] against a demurrer, but instead must determine if the factual allegations of the [petition] are adequate to state a cause of action under any legal theory.

The courts of this state have ... long since departed from holding a plaintiff strictly to the ‘form of action’ he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained.’” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38–39.)

At the pleading stage, both causes of action sufficiently allege wrongdoing to overcome a demurrer on the ground of failure to state a claim. The demurrers to the first and fourth causes of action are OVERRULED on that ground.

Petitioner is directed to give notice.