Opinion
B221585
10-26-2011
LARRY B. MOORE, Plaintiff and Appellant, v. SHARYN CLARK, Defendant and Respondent.
Larry B. Moore, in pro. per., for Plaintiff and Appellant. Law Offices of Lorna C. Washington and Lorna C. Washington, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC407176)
APPEAL from a judgment of the Superior Court of Los Angeles County, Ralph W. Dau, Judge. Reversed.
Larry B. Moore, in pro. per., for Plaintiff and Appellant.
Law Offices of Lorna C. Washington and Lorna C. Washington, for Defendant and Respondent.
Appellant Larry B. Moore appeals from an order dismissing this action following the trial court's sustaining of respondent Sharyn Clark's demurrer without leave to amend. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Moore is a prison inmate and the son of Ruby Moore, who died intestate in October 2004. Moore petitioned the probate court seeking appointment as administrator of his mother's estate. His petition was denied on the ground that under Probate Code section 8402, subdivision (a)(2), as "an indigent prisoner [he] would likely be 'incapable of executing . . . the duties of the office.'" (Conservatorship of the Person of Ruby Lois Moore v. Franchise Tax Board (Aug. 19, 2009, B211199) [nonpub. opn.] at p. 5 (the Probate Appeal).) We affirmed the probate court's decision denying Moore's petition for letters of administration of Ruby Moore's estate. (Ibid.)
In the instant action Moore sued Clark, a notary public, and others (none of whom is a party to this appeal), based on her involvement in an allegedly improper posthumous transfer of Ruby Moore's real property. Moore claims Clark participated in a fraudulent scheme to unlawfully deprive him and his relatives of real property to which they are entitled as Ruby Moore's heirs. In the first amended complaint (FAC) Moore asserted four causes of action denominated "real estate fraud, misrepresentation, intentional tort," and "petition to restore real property . . . illegally sold without an order of the Probate Court."
In a separate appeal, another appellate division affirmed orders sustaining demurrers of some defendants to Moore's pleading. (Moore v. Axcess Mortgate Group (Dec. 2, 2010, B219349) [nonpub. opn.]). That decision does not address dismissal of the action as to Clark.
Moore neglected to include the operative First Amended Complaint in the appellate record. The appellant's appendix also lacks a copy of Clark's demurrer and Moore's opposition thereto. We obtained the superior court file and have augmented the record with these documents. (See Rule 8.155 (a)(1)(A) [reviewing court may order the appellate record augmented on its own motion to include documents filed in the trial court].)
Clark demurred to the FAC asserting it "fail[ed] to state facts sufficient to constitute a cause of action against [her]." She maintained that Moore failed to state a claim against her because he alleged only that she "[f]raudulently notarized a deed to [Ruby Moore's] real property after the date of the death of the decedent." Moore did not claim Clark had any "knowledge or facts to support the allegation that Clark . . . willfully participated in the allege[d] fraud." The trial court took judicial notice of our decision in the Probate Appeal and found that Moore both "lack[ed] standing to bring these causes of action, and . . . fail[ed] to allege facts sufficient to constitute a cause of action against . . . Clark." The demurrer was sustained without leave to amend.
DISCUSSION
Moore represents himself on appeal. His opening brief contains three pages of argument with no analysis of any legal issue and no citation to authority. We are able to discern two essential contentions of error. Moore contends the trial court erred when it took judicial notice of our decision in the Probate Appeal and when it sustained Clark's demurrer without leave to amend. Moore's first contention lacks merit, but his second does not.
Moore also maintains he should be given an opportunity to amend his opening brief because of alleged misconduct on the part of Clark's counsel and other circumstances beyond his control. This point relates to postjudgment events and will not be addressed.
1. Judicial notice
The trial court did not err by taking judicial notice of the decision in the Probate Appeal. Judicial notice may be taken of the records of "any court of record of the United States . . . ." (Evid. Code, § 452, subd. (d).) Judicial notice must be taken of any matter specified in Evidence Code section 452 upon proper request. (Evid. Code, § 453.) And judicial notice may be taken of, among other things, the existence of judicial opinions, court orders and judgments. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 (Lockley).)It was entirely proper for the court to take judicial notice of the decision in the Probate Appeal.
The trial court took judicial notice of our decision in the Probate Appeal for the apparent purpose of determining whether Moore had standing to prosecute this action. "'Under the doctrine of judicial notice, certain matters are assumed to be indisputably true, and the introduction of evidence to prove them will not be required . . . . [Citation.]'" (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) "Judicial notice of findings of fact does not mean those findings are true, but simply that they were made. [Citations.] Thus, while a court can take judicial notice that a court made a particular ruling, it cannot take judicial notice of the truth of a factual finding made in another action." (People v. Moore (1997) 59 Cal.App.4th 168, 178, citing Sosinsky, pp. 1564-1565.) In ruling on a demurrer, the trial court "'will . . . consider judicially noticeable facts, even if such facts are not set forth in the complaint. [Citation.]'" (Litwin v. Estate of Formela (2010) 186 Cal.App.4th 607, 612-613.) "The underlying theory of judicial notice is that the matter being judicially noticed is a law or fact that is not reasonably subject to dispute. [Citations]" (Lockley, supra, 91 Cal.App.4th at p. 882.) Under Code of Civil Procedure section 430.30, subdivision (a), "[w]hen any ground for objection to a complaint . . . appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading."
Here, after taking judicial notice of our decision affirming the denial of Moore's petition to administer his mother's estate and reviewing the pleadings and papers presented, the trial court concluded that Moore "lack[ed] standing to bring [the asserted] causes of action," and had also failed "to allege facts sufficient to constitute a cause of action against . . . Clark." The court was mistaken.
2. The trial court erred when it sustained the demurrer without leave to amend
In reviewing a general demurrer sustained without leave to amend, we must determine whether, assuming facts alleged in the operative complaint are true, a cause of action has been or could be stated. (Ball v. GTE Mobilnet of California (2000) 81 Cal.App.4th 529, 534-535.) It is error to sustain a general demurrer if the complaint states a cause of action under any possible legal theory. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) And it is error to do so without leave to amend, if it might be possible to amend the pleading to state a viable claim. (Ibid.; Careau & Co. v Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386.)
a. Moore has standing
The trial court sustained the demurrer based, in part, on its conclusion that Moore lacked standing because he had not been appointed administrator of his mother's estate. But, Moore's alleged status in the FAC is not limited to that of an executor. His claims are also pleaded "on his own behalf."
Moore also purports to have brought this action on behalf of other potential heirs of his mother's estate. But Moore is in pro. per. As such, the trial court did not err to the extent it found he may not bring this action on behalf of other heirs. (Hansen v. Hansen (2003) 114 Cal.App.4th 618, 621-622.)
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The fact that Moore was not appointed executor of his mother's estate—the fact shown by the Probate Appeal—does not establish that he lacks standing to assert claims of fraud and the like against Clark, a notary whom he alleges was involved in an improper after-death transfer of his mother's property in her name. It does not establish that he is not entitled, by virtue of his status as an heir and successor-in-interest, to assert such causes of action on his own behalf. "'The . . . law [allows] the successor in interest to bring an action if there is no probate.'" (Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1524; Code Civ. Proc. § 377.30 [surviving cause of action passes to decedent's successor in interest]; see Code Civ. Proc., § 377.11 ["decedent's successor in interest" includes anyone who succeeds to an interest in the property].)
A cause of action belongs to the decedent's heirs or devisees upon the decedent's death, unless and until a personal representative is appointed. (Code Civ. Proc. § 377.30.) Thus, although judicial notice of the Probate Appeal was properly taken to establish that Moore was not the personal representative of the estate, it cannot establish the truth of any other facts the ruling might recite. (People v. Moore, supra, 59 Cal.App.4th at p. 178 [judicial notice may be taken of court records, but not of truth of facts asserted in those records].) The record does not reflect the appointment of another personal representative by the time the demurrer was sustained. The Probate Appeal therefore does not establish that Moore lacks standing in this action.
b. Viable causes of action might be asserted
We need not (and cannot) determine on this record the viability of potential claims suggested by the pleaded facts. As to Clark, the pleading alleges (inartfully, at best) that she participated in an improper (and perhaps fraudulent) transaction to transfer interests in Ruby Moore's property after her death. It also alleges that because Clark failed in her duty as notary to properly identify the person responsible for Ruby Moore's post-death signatures on the transactions, "her actions and omissions [helped] to p[er]petrate this fraudulent transaction for which this cause of action is filed," and that Moore was harmed thereby. These facts suggest a reasonable possibility that Moore might amend one or more viable claims. That possibility is enough to survive a demurrer without leave to amend. (Careau & Co. v Security Pacific Business Credit, Inc., supra, 222 Cal. App. 3d at p. 1386.)
DISPOSITION
The order sustaining Clark's demurrer to the first amended complaint without leave to amend is reversed. The matter is remanded to the trial court with directions to enter an order granting Moore leave to amend the first amended complaint as to defendant and respondent Clark. Moore shall recover his costs of appeal.
NOT TO BE PUBLISHED.
JOHNSON, J. We concur:
ROTHSCHILD, Acting P. J. CHANEY, J.