Opinion
G043058 Super. Ct. No. 30-2008-00107111
09-07-2011
GAIL SOLLOSY, as Administrator, etc., Plaintiff and Appellant, v. MARTIN HOFFMAN et al., Defendants and Respondents.
Camarena and Plese and Anton Plese for Plaintiff and Appellant. No appearance for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment order of the Superior Court of Orange County, Randell L. Wilkinson, Judge. Affirmed in part and reversed in part.
Camarena and Plese and Anton Plese for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
INTRODUCTION
Plaintiff Gail Sollosy, as administrator of the estate of her deceased mother, Virginia Fornachon, sued defendant Martin Hoffman for breach of fiduciary duty, breach of contract, fraud, conversion, unjust enrichment, common counts, and accounting. Plaintiff also alleged her unjust enrichment and common counts claims against Martin Hoffman's wife, Jennifer Hoffman. The gravamen of plaintiff's second amended complaint is that Martin, while acting as Fornachon's attorney in fact, kept for himself the proceeds from the sale of Fornachon's residence. Plaintiff also alleged Martin failed to make a complete accounting of all of Fornachon's money, real property, and personal property, over which he had been given power of attorney.
We use defendants' first names to avoid confusion and intend no disrespect. (Nairne v. Jessop-Humblet (2002) 101 Cal.App.4th 1124, 1126, fn. 1.)
Defendants demurred to the second amended complaint on the grounds plaintiff failed to allege sufficient facts to state any cause of action and each of plaintiff's claims was otherwise defeated by the applicable statute of limitations. The trial court sustained the demurrer without leave to amend.
We reverse the judgment as to all of plaintiff's claims except her fraud claim. The second amended complaint alleged sufficient facts to state claims for breach of fiduciary duty, breach of contract, conversion, unjust enrichment, common counts, and accounting. As the second amended complaint does not show on its face that those claims are time-barred, the demurrer should have been overruled as to those claims. We affirm the judgment as to plaintiff's fraud claim because she failed to allege sufficient facts to state such a claim and she does not contend the trial court should have granted her leave to amend.
SUMMARY OF ALLEGATIONS OF SECOND AMENDED COMPLAINT
In May 1993, Fornachon executed a last will and testament (the will) in which she appointed plaintiff, Fornachon's only child, as administrator of her estate. (A copy of the will is attached to the second amended complaint and therein incorporated.) The will stated Fornachon bequeathed "all [her] property of every nature and kind wheresoever situated" to plaintiff. From February 2000 until the date the second amended complaint was filed, plaintiff lived in Alberta, Canada.
In February 2000, Fornachon granted Martin a durable power of attorney, providing him "the authority to manage Virginia Fornachon['s] financial affairs." (A copy of the durable power of attorney is attached to the second amended complaint and therein incorporated.)
In April 2002, Martin sold Fornachon's real property located in Long Beach (the Long Beach property). The net proceeds from the sale were approximately $277,000. Pursuant to the power of attorney, Martin was to invest the proceeds from the sale of the Long Beach property for Fornachon's benefit. Instead, on some unspecified date, Martin took the proceeds from the sale of the Long Beach property for himself and purchased real property in San Juan Capistrano (the San Juan Capistrano property). Title to the San Juan Capistrano property was taken in Martin's and Jennifer's names. Martin and Jennifer had since leased the San Juan Capistrano property and received all the rental income generated from it.
Fornachon died on May 28, 2004. Martin failed to turn over any of Fornachon's personal or real property or any financial instruments to plaintiff. Plaintiff was unaware of any transactions Martin made on Fornachon's behalf; plaintiff was not provided information about any such transactions until Martin wrote a letter dated November 22, 2005 (the November 22, 2005 letter), in which he addressed the transactions he made on behalf of Fornachon.
In the November 22, 2005 letter, Martin stated in part: "I apologize for this taking so long, but now I have all the appropriate and accurate information necessary.
I have enclosed three documents; one document outlining the total cost of care for [Fornachon]; one document from Charles J. McLucas Jr. CPA and President of Charitable Trust Administrators, Inc., and one from Steve Haythorne owner of Salt Creek Realty. [¶] I believe these three documents provide the necessary information whereby we can move forward in closing [Fornachon]'s estate." Attached to the November 22, 2005 letter was only the second document it identifies—a letter dated November 4, 2005 from Charles J. McLucas, Jr. McLucas's letter stated that the purchase price of the San Juan Capistrano property was a total of $345,669.46 of which $276,236.78 was paid using Fornachon's money. McLucas opined that Martin should reimburse Fornachon's estate by paying it $46,193.
Martin did not pay that sum to plaintiff and had otherwise failed to account for any other real or personal property that belonged to Fornachon. The total amount of money defendants owe to plaintiff was unknown to plaintiff and could not be ascertained without an accounting.
PROCEDURAL HISTORY
On May 23, 2008, plaintiff filed a complaint against Martin for breach of fiduciary duty, conversion, unjust enrichment, common counts, and accounting; Jennifer was named as a defendant as to the unjust enrichment and common counts claims. Although defendants demurred to the claims asserted against them, our record does not contain any ruling by the trial court.
In March 2009, plaintiff filed a first amended complaint asserting claims for breach of fiduciary duty, conversion, unjust enrichment, common counts, and accounting. It also asserted claims for breach of contract and fraud against Martin.
Defendants filed a demurrer to the first amended complaint, challenging each cause of action based on the applicable statute of limitations and on the ground each cause of action failed to allege sufficient facts to state a cause of action. Defendants also demurred to the first amended complaint on the ground "[p]laintiff fail[ed] to properly allege standing to bring the current action."
The trial court's minute order stated in part: "[T]he demurrer is sustained with 10 days leave to amend for failure to allege sufficient facts to support a cause of action and for failure to allege facts that the causes of action are not barred by the applicable statutes of limitation. The court also sets an order to show cause hearing as to why this matter should not be heard in Probate Court."
No issue has been raised in this appeal as to whether this case should have been heard in the probate court.
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Plaintiff filed a second amended complaint containing claims for breach of fiduciary duty, breach of contract, fraud, conversion, unjust enrichment, common counts, and accounting against Martin and for unjust enrichment and common counts against Jennifer. Defendants demurred to the second amended complaint on the grounds it alleged insufficient facts to state any cause of action and each claim was barred by the applicable statute of limitations. The demurrer was also made on the ground the fraud claim was not pleaded with sufficient specificity. Defendants requested that the trial court take judicial notice of the following fact as to the sale of the Long Beach property: "That a certified copy of the Grant Deed recorded April 10, 2002 as Instrument Number 2002 0841291 in the Office of the Orange County Recorder."
The court sustained the demurrer to the second amended complaint as to all causes of action without leave to amend and dismissed the second amended complaint. The trial court's minute order stated: "Defendant's demurrer to the 2nd amended complaint is sustained in its entire[t]y without leave to amend. The court finds that defendant owed no duty to plaintiff to discuss financial transactions undertaken with the decedent's full authority. There are no facts indicating that the decedent did not want defendant to purchase property for himself with the sale proceeds. Finally, because the statutes of limitation had run as to decedent's claims, if any, the cause[s] of action are not revived by her death." Judgment was entered in favor of defendants and against plaintiff. Plaintiff appealed.
DISCUSSION
I.
STANDARD OF REVIEW
A judgment following the sustaining of a demurrer is reviewed de novo. (Boccato v. City of Hermosa Beach (1994) 29 Cal.App.4th 1797, 1803-1804.) We treat the properly pleaded allegations of a challenged complaint as true, and liberally construe them to achieve "'"substantial justice"'" among the parties. (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118.) We consider only the allegations of a challenged complaint and matters subject to judicial notice to determine whether the facts alleged state a cause of action under any theory. (Ibid.) "'Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]'" (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
II.
THE TRIAL COURT ERRED BY SUSTAINING THE DEMURRER AS TO PLAINTIFF'S CLAIMS
FOR BREACH OF FIDUCIARY DUTY, BREACH OF CONTRACT, CONVERSION, UNJUST
ENRICHMENT, COMMON COUNTS, AND ACCOUNTING.
Defendants successfully demurred to each of the claims contained in the second amended complaint. Applying the de novo standard of review discussed ante, and for the reasons we will explain in detail post, we conclude the trial court erred by sustaining the demurrer as to the breach of fiduciary duty, breach of contract, conversion, unjust enrichment, common counts, and accounting claims.
A.
Breach of Fiduciary Duty Claim
"The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages." (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) Probate Code section 39 provides that a person with a power of attorney is a fiduciary and thus owes fiduciary duties to his or her principal. Section 39 states: "'Fiduciary' means personal representative, trustee, guardian, conservator, attorney-in-fact under a power of attorney, custodian under the California Uniform Transfer To Minors Act (Part 9 (commencing with Section 3900) of Division 4), or other legal representative subject to this code." (See also Cutler v. State Bar (1969) 71 Cal.2d 241, 251.) Probate Code section 4232, subdivision (a) provides: "An attorney-in-fact has a duty to act solely in the interest of the principal and to avoid conflicts of interest."
In support of the breach of fiduciary duty claim, the second amended complaint alleged (1) Martin owed a fiduciary duty to Fornachon, while acting in his capacity as attorney in fact over her financial affairs; (2) he breached that duty by taking for himself the proceeds of the sale of the Long Beach property and by using those funds to buy a house in Martin's and Jennifer's names; and (3) Fornachon and her estate were damaged by Martin's breach of fiduciary duty as they were deprived of access to and the benefit of Fornachon's money. The second amended complaint alleged sufficient facts to state a claim for breach of fiduciary duty.
In sustaining the demurrer to the second amended complaint, the trial court noted the absence of facts showing Fornachon "did not want [Martin] to purchase property for himself with the sale proceeds" of the Long Beach property. But plaintiff was not required to allege Fornachon's lack of consent because the elements of a breach of fiduciary duty claim do not include an element showing the principal's lack of consent; that Fornachon might have consented to Martin's conduct might be relevant down the road in defending against the claim. As discussed ante, plaintiff alleged duty, breach, and damages. Plaintiff stated a claim for breach of fiduciary duty.
The court stated Martin owed no duty to plaintiff to discuss financial transactions undertaken with Fornachon's full authority as her attorney in fact. We agree that plaintiff does not state a claim for breach of fiduciary duty based on Martin's failure to keep plaintiff apprised of his management of Fornachon's financial affairs as her attorney in fact. But, as discussed ante, plaintiff stated a claim for breach of fiduciary duty based on Martin's failure to act solely for Fornachon's benefit.
The second amended complaint alleged Martin also breached his fiduciary duty by failing to turn over Fornachon's property to plaintiff after Fornachon's death, stating: "Martin Hoffman failed to turn over any personal or real property or any financial instruments to Virginia Fornachon['s] daughter and successor in interest Gail Sollosky [sic]."
Probate Code section 4152, subdivision (a)(4) provides that "the authority of an attorney-in-fact under a power of attorney is terminated by" the "[d]eath of the principal, except as to specific authority permitted by statute to be exercised after the principal's death." Probate Code section 4238, subdivision (a)(3) provides that "[o]n termination of an attorney-in-fact," an attorney in fact "shall promptly deliver possession or control of the principal's property" to "the principal's personal representative, if any, or the principal's successors" in "the case of the death of the principal."
As the second amended complaint alleged facts showing Martin breached his fiduciary duty to turn over Fornachon's property to plaintiff within the meaning of Probate Code section 4238, subdivision (a)(3), plaintiff has stated a claim for breach of fiduciary duty against Martin on this basis, as well.
The trial court's minute order also states that the court sustained defendants' demurrer to plaintiff's breach of fiduciary duty claim because it was barred by the applicable statute of limitations. "While a demurrer based on statute of limitations lies where the dates in question are shown on the face of the complaint, if those dates are missing, there is no ground for a general demurrer." (United Western Medical Centers v. Superior Court (1996) 42 Cal.App.4th 500, 505.) In the latter circumstances, the defendant's "remedy is to ascertain the factual basis of the contentions through discovery and, if necessary, file a motion for summary judgment to eliminate that cause of action should the facts reveal the claim is time-barred." (Ibid.; Union Carbide Corp. v. Superior Court (1984) 36 Cal.3d 15, 25-26 ["'Because the complaint does not reveal on its face that it is barred by the statute of limitations, real parties were not required to plead fraudulent concealment as an excuse for late filing. Thus, the fraudulent concealment allegation is mere surplusage, and the trial court was not required to sustain a demurrer or motion to strike directed toward it'" (fn. omitted)].) As we will explain, because the second amended complaint does not show on its face that plaintiff's breach of fiduciary duty claim is time-barred, the trial court erred by sustaining the demurrer to that claim on that basis.
There is no specific limitations period governing actions for breach of fiduciary duty; thus, a claim for breach of fiduciary duty that does not amount to actual or constructive fraud is governed by Code of Civil Procedure section 343, the catch-all statute of limitations which establishes a four-year limitations period. (City of Vista v. Robert Thomas Securities, Inc. (2000) 84 Cal.App.4th 882, 889; Stalberg v. Western Title Ins. Co. (1991) 230 Cal.App.3d 1223, 1230.) The second amended complaint does not allege the date Martin took for himself the proceeds from the sale of the Long Beach property to purchase the San Juan Capistrano property for defendants. It is possible Martin's alleged breach of fiduciary duty occurred within four years of the May 23, 2008 filing date of plaintiff's original complaint. Furthermore, Martin's failure to deliver Fornachon's property to plaintiff upon Fornachon's death could have occurred no earlier than the date of Fornachon's death on May 28, 2004, a date which is within the four-year time period prior to the filing of the original complaint.
Plaintiff argues in the opening brief that the accrual of the statute of limitations for the breach of fiduciary duty claim is delayed until the facts essential to the claim are discovered. "Under the general rule, a cause of action accrues when the wrongful act is done and not when a plaintiff discovers he or she has a cause of action to pursue. . . . However, '[t]he harshness of this rule has been ameliorated in some cases where it is manifestly unjust to deprive plaintiffs of a cause of action before they are aware that they have been injured.' Accordingly, 'a cause of action under the discovery rule accrues when the plaintiff discovers or should have discovered all facts essential to his cause of action . . . ; this has been interpreted under the discovery rule to be when "plaintiff either (1) actually discovered his injury and its negligent cause or (2) could have discovered injury and cause through the exercise of reasonable diligence."'" (Moreno v. Sanchez (2003) 106 Cal.App.4th 1415, 1423, fns. omitted.) "Delayed accrual of a cause of action is viewed as particularly appropriate where the relationship between the parties is one of special trust such as that involving a fiduciary, confidential or privileged relationship." (Id. at p. 1424.)
Because we conclude the second amended complaint on its face does not show the breach of fiduciary duty claim is time-barred, we do not need to decide whether plaintiff sufficiently alleged that a delay in the accrual of the applicable statute of limitations should apply in this case. We note, however, that the second amended complaint is silent as to the date of Martin's alleged breach of fiduciary duty by taking Fornachon's funds. It is thus unclear whether that alleged conduct occurred before or after Fornachon died on May 28, 2004. Although plaintiff expressly alleged her lack of awareness of Martin's breach of fiduciary duty until she received the November 22, 2005 letter, the second amended complaint does not allege Fornachon's lack of awareness of Martin's conduct before her death.
The trial court erred by sustaining defendants' demurrer to the breach of fiduciary duty claim.
B.
Breach of Contract Claim
"[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff." (Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at p. 821.)
The second amended complaint alleged sufficient facts to state a breach of contract claim against Martin. It alleged Fornachon and Martin entered into a written contract by which they agreed that Martin would have power of attorney over Fornachon's financial affairs. The second amended complaint incorporated the contract itself which expressly stated, in part, that Martin was authorized "[t]o purchase real property on [Fornachon]'s behalf and that he was not granted the power "[t]o use [Fornachon]'s assets for [Martin]'s own legal obligations, including but not limited to support of [his] dependents." The second amended complaint alleged Martin breached the contract by taking for himself the proceeds of the sale of the Long Beach property to purchase the San Juan Capistrano property for his own benefit. The second amended complaint alleged Martin's breach was shown by his purchasing the San Juan Capistrano property in his and Jennifer's names and by leasing the San Juan Capistrano property and collecting the rent generated. The second amended complaint further alleged plaintiff suffered damages as a result of Martin's breach of the contract.
The statute of limitations for breach of a written contract is four years. (Code Civ. Proc., § 337, subd. 1.) As discussed ante, the second amended complaint did not allege when Martin breached the power of attorney contract by using Fornachon's money to purchase the San Juan Capistrano property for him and Jennifer. The allegations of the second amended complaint do not foreclose the possibility that the San Juan Capistrano property was acquired within four years of the filing of the original complaint. In addition, each receipt of rental income may have been a breach.
The trial court therefore erred by sustaining the demurrer as to the breach of contract cause of action.
C.
Conversion Claim
"'"Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are the plaintiff's ownership or right to possession of the property at the time of the conversion; the defendant's conversion by a wrongful act or disposition of property rights; and damages."'" (Plummer v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38, 45.) "'Neither legal title nor absolute ownership of the property is necessary. [Citation.] A party need only allege it is "entitled to immediate possession at the time of conversion. [Citations.]" [Citation.] However, a mere contractual right of payment, without more, will not suffice.'" (Ibid.)
Plaintiff stated a claim for conversion against Martin. In support of the conversion claim, the second amended complaint alleged Martin "has refused, upon request, to give the money received and invested from the property to the plaintiff" and further alleged Martin "has kept other personal property belonging to Virginia Fornachon the nature and exten[t] which is unknown." The second amended complaint stated that plaintiff, as administrator of Fornachon's estate and Fornachon's sole heir, was damaged as a result of Martin's conversion.
The statute of limitations for bringing a claim for conversion of tangible personal property is three years under Code of Civil Procedure section 338, subdivision (c). (Coy v. County of Los Angeles (1991) 235 Cal.App.3d 1077, 1087-1088.) In Strasberg v. Odyssey Group, Inc. (1996) 51 Cal.App.4th 906, 917, the appellate court explained that in the context of a claim of conversion against a fiduciary, the statute of limitations begins running upon the knowledge or notice by the beneficiary of the wrongful conduct.
Plaintiff alleged she was unaware that there was property that belonged to Fornachon, which Martin had failed to turn over to her, until she received the November 22, 2005 letter. Hence, the second amended complaint did not show that the conversion claim is time-barred. The trial court therefore erred by sustaining the demurrer to that claim.
D.
Unjust Enrichment Claim
"The elements of an unjust enrichment claim are the 'receipt of a benefit and [the] unjust retention of the benefit at the expense of another.' [Citation.] . . . '[T]he "mere fact that a person benefits another is not of itself sufficient to require the other to make restitution therefor."' [Citation.] 'There is no equitable reason for invoking restitution when the plaintiff gets the exchange which he expected.'" (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593, fn. omitted.)
In support of the unjust enrichment claim, plaintiff alleged Martin used the proceeds from the sale of the Long Beach property to purchase the San Juan Capistrano property for the benefit of Jennifer and him. The second amended complaint also alleged defendants were unjustly enriched by leasing the San Juan Capistrano property and collecting the rent it generated.
The limitations period for an unjust enrichment cause of action is three years. (Code Civ. Proc., § 338, subd. (d); Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 347.) Plaintiff has not alleged any date showing when defendants were unjustly enriched by Martin's conduct. Thus, the second amended complaint does not show the unjust enrichment claim was untimely.
The trial court erred by sustaining the demurrer as to the unjust enrichment cause of action.
E.
Common Counts Claim
To establish a common counts claim for money had and received, "[t]he complainant must allege that the money was expended for the use and benefit of the defendant, at his instance and request, and such facts as will show an express or implied contract or a quasi contract on the part of the defendant to pay the amount so expended." (Division of Labor Law Enforcement v. Barnes (1962) 205 Cal.App.2d 337, 347.) "The count for money had and received states in substance that the defendant is indebted to the plaintiff in a certain sum 'for money had and received by the defendant for the use of the plaintiff.'" (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 561, p. 688.)
Plaintiff alleged, in support of her claim for common counts, that defendants "received money from the lease and sale of the Long Beach property, and "received money and interest from the proceeds from the lease and sale" of the Long Beach property. Plaintiff further alleged she "has made a demand on the defendants, to pay them the amount of the rents received for the sale [of] Virginia Fornachon property. Defendants have refused to pay plaintiff."
Plaintiff alleged sufficient facts to state a claim for common counts. Furthermore, plaintiff did not allege any date upon which defendants became indebted to pay plaintiff the amount of money expended for the use and benefit of defendants; thus, the second amended complaint did not show on its face plaintiff's claim is time-barred by the applicable three-year statute of limitations. (Code Civ. Proc., § 338, subd. (d); First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1670 [common count for money had and received to recover money obtained by fraud is subject to the three-year statute of limitations governing fraud].)
The trial court erred by sustaining defendants' demurrer as to the common counts claim.
F.
Accounting Claim
"A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting. [Citations.] [¶] An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation. [Citation.] A plaintiff need not state facts that are peculiarly within the knowledge of the opposing party. [Citation]." (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.)
"[A] fiduciary relationship between the parties is not required to state a cause of action for accounting. All that is required is that some relationship exists that requires an accounting. [Citation.] The right to an accounting can arise from the possession by the defendant of money or property which, because of the defendant's relationship with the plaintiff, the defendant is obliged to surrender." (Teselle v. McLoughlin, supra, 173 Cal.App.4th at pp. 179-180.)
The second amended complaint alleged that Fornachon granted Martin a durable power of attorney over her finances and Martin managed her estate since that time until her death. It also alleged Martin has refused plaintiff's demand he deliver to plaintiff Fornachon's property and has otherwise failed to make an accounting as to transactions he made on Fornachon's behalf. Those allegations were sufficient to state a claim for an accounting.
A claim for an accounting "is treated as a cause of action available to a wronged fiduciary [citation], which is subject to the statute of limitations governing the nature of the underlying wrong." (Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018, 1023, fn. 3.) As the gravamen of plaintiff's claim is that Martin, notwithstanding his fiduciary relationship with Fornachon, had failed to account for his management of Fornachon's financial affairs since he became her attorney in fact, it is subject to the same four-year statute of limitations as her breach of fiduciary duty claim. The demurrer, therefore, should not have been sustained as to the accounting claim on a statute of limitations ground for the same reasons, discussed ante in the Discussion section, part II.A, that the demurrer should not have been sustained on the same ground as to the breach of fiduciary duty claim.
III.
THE TRIAL COURT DID NOT ERR BY SUSTAINING WITHOUT LEAVE TO AMEND
THE DEMURRER TO PLAINTIFF'S FRAUD CLAIM BECAUSE THE SECOND AMENDED
COMPLAINT FAILED TO ALLEGE SUFFICIENT FACTS TO STATE A CLAIM.
"'"[T]he elements of fraud, which gives rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage."'" (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173.) "In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] 'Thus, "'the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect.'"'" (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)
The trial court did not err by sustaining the demurrer to the fraud claim because the second amended complaint did not allege facts showing all of the elements of fraud. Most conspicuously, the fraud cause of action does not identify any misrepresentation of fact. The fraud cause of action, however, generally incorporates by reference Fornachon and Martin's power of attorney agreement in which Martin expressly agreed, inter alia, he was not granted the power "[t]o use [Fornachon]'s assets for [Martin]'s own legal obligations." To the extent this provision in the contract might be construed as a representation by Martin that he would not use Fornachon's assets for his own legal obligations, there is still no allegation this representation, or any other representation made by Martin to Fornachon or plaintiff, was false when made. Quite simply, the element of intent to defraud at the time any misrepresentation was made is missing.
The second amended complaint did not allege that Martin committed fraud by concealing or failing to disclose material information. Assuming plaintiff intended to plead a concealment theory of fraud, the second amended complaint did not allege the necessary element Martin concealed or suppressed information with the intent to induce any particular action or inaction. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868 [the elements of an action for fraud based on a concealment theory include that the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff and the plaintiff would not have acted as the plaintiff did if he or she had known of the concealed or suppressed fact].) The trial court, therefore, properly sustained the demurrer to the fraud cause of action because the second amended complaint did not allege sufficient facts to state a claim.
Plaintiff does not assert in the opening brief that given the opportunity, she would have been able to amend her fraud claim to overcome its infirmity. Plaintiff mentioned, in the opposition to the demurrer, she wished to amend to change her status from administrator to successor in interest, and, in her "conclusion," she requested leave to file an amended complaint. However, she did not otherwise state in that request how she would amend the complaint. The trial court, therefore, did not err by sustaining that claim without leave to amend. Of course, nothing in this opinion should be construed to limit plaintiff's right to seek leave to amend the second amended complaint to allege a fraud claim.
DISPOSITION
The judgment is reversed as to the order sustaining the demurrer pertaining to the claims for breach of fiduciary duty, breach of contract, conversion, unjust enrichment, common counts, and accounting of the second amended complaint. The judgment is affirmed as to the order sustaining the demurrer without leave to amend as it pertains to the fraud cause of action. Appellant shall recover costs on appeal.
FYBEL, J.
WE CONCUR:
ARONSON, ACTING P. J.
IKOLA, J.