Filed 10/21/19 Lew v. Lew CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

DECONS LEW,

Plaintiff and Appellant,

v.

TONY KIN-WAH LEW et al.,

Defendants and Respondents.

A156285

(Alameda County

Super. Ct. No. RG17855859)

Plaintiff Decons Lew (plaintiff), in propria persona, appeals from the trial court’s grant of defendants Tony Kin-Wah Lew, Yin King Chong, and Lethe Sau-May Lew’s (collectively, defendants) motion for judgment on the pleadings without leave to amend. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed her original complaint against defendants—her mother, brother, and sister—on April 7, 2017, alleging defendants fraudulently transferred title of her real property to her brother and sold the property to a third party without her knowledge in 2006. In October 2017, the trial court granted defendants’ motion for judgment on the pleadings but granted plaintiff leave to amend to include allegations to support a claim that the statute of limitations was tolled by the delayed discovery rule.

Plaintiff filed a first amended complaint and defendants again moved for judgment on the pleadings. The trial court granted the motion, stating plaintiff had not pleaded sufficient facts to show the statute of limitations was tolled. The court granted plaintiff leave to amend, as the complaint’s “deficiencies do not foreclose the possibility that Plaintiff may still be able to plead around the applicable statute of limitations.”

In May 2018, plaintiff filed a second amended complaint—the operative complaint. She alleged she bought a house (the House) in 1996 and moved into the House with two of the defendants—her brother, Tony Kin-Wah Lew and her sister, Lethe Sau-May Lew. In 2004, plaintiff was hospitalized for a mental health condition and was “diagnosed with bi-polar disorder and hallucinations”; upon her release, plaintiff’s siblings and her mother, defendant Yin King Chong, persuaded plaintiff not to move back into the House, but to live with a nurse who could take care of her. Plaintiff’s brother told plaintiff that he would “take over managing the [House] for her” and said he needed to be on title in order to do so. He assured plaintiff that “he would have no right, title, or interest in the property and was just putting his name on [title] to protect her.” Defendants “recruited the Pastor and church members from Plaintiff’s church . . . to exert undue pressure and persuasion on Plaintiff to execute the deed. . . .” Plaintiff was “in a confused mental state” and was “tricked” into signing a grant deed conveying the House to herself and her brother as joint tenants.

Plaintiff alleged that, on or about November 1, 2004, her brother “either forged and/or somehow tricked [her] into signing her signature on a Grant Deed that purported to convey the [House] . . . to [him] as his sole and separate property.” Because of her “poor and unstable mental condition,” she “was never aware of signing any grant deeds” and “did not understand the terms or significance of any signing.” Her brother then sold the House to a third party on January 4, 2006 without plaintiff’s knowledge. Defendants moved to Arizona that same year and plaintiff, who did not know the House had sold, thought her brother was renting it out and “deriving income that was paying for the monthly bills and mortgage.”

Plaintiff alleged she had an “amicable relationship” with defendants and that her brother “repeatedly reassured” her between 2006 and 2017 that defendants were taking care of the House. In 2017, their relationship suddenly changed and their telephone conversations became “more frequent and heated.” In light of the parties’ “rapidly deteriorating relationship,” plaintiff “for the first time began to question [her brother’s] statements to her” and learned in or about March 2017 through the recorder’s office that defendants had sold the House in 2006. Based on these facts as pled, plaintiff alleged causes of action for fraud, conversion, intentional infliction of emotional distress, resulting trust, unjust enrichment, imposition of a constructive trust, and civil conspiracy.

Defendants filed a third motion for judgment on the pleadings and the trial court granted the motion on November 6, 2018 without leave to amend. The court ruled that plaintiff had not pled facts to show she would not have been able to make an “ ‘earlier discovery despite reasonable diligence.’ ” “Plaintiff alleges that in 2004, 13 years before filing suit, Defendants talked her out of moving back into her own house . . . and then exerted ‘undue influence’ and ‘persuasion’ to compel her to execute a Grant Deed by which her brother Tony became her joint tenant. . . Plaintiff did not allege any reasonable explanation for why these adverse actions did not cause her to suspect that Defendants were acting against her interests.” The court also stated plaintiff “has not pleaded nor suggested that she could plead facts showing a ‘condition of mental derangement which renders the sufferer incapable of caring for [her] property or transacting business, or understanding the nature or effects of [her] acts[.]’ [Citation].” The court entered judgment against plaintiff and in favor of defendants, and plaintiff timely appealed.

DISCUSSION

Plaintiff contends the trial court erred in granting defendants’ motion for judgment on the pleadings because she alleged sufficient facts to show the statute of limitations was tolled, and because defendants should be equitably estopped from asserting a statute of limitations defense because they “ ‘induced [her] to refrain from filing suit [within the limitations period].’ ” We do not agree.

“The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer. The trial court determines whether it appears from the pleadings, together with matters that may be judicially noticed, the moving party is entitled to judgment as a matter of law. We review the trial court’s determination de novo. In doing so, we assume the truth of, and liberally construe, all properly pleaded factual allegations in the complaint. [Citation.] In determining whether the pleadings entitle the moving party to judgment as a matter of law, we conduct the appropriate analysis without deferring to the reasoning of the trial court. [Citation].” (Shields v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 782, 785.) “We review the trial court’s denial of leave to amend for abuse of discretion, which the plaintiffs must establish by offering proposed amendments to this court that state a legally sufficient cause of action. [Citation].” (Ibid.)

As explained by our state Supreme Court in Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, at pages 806–807, the statute of limitations begins to run when “a cause of action accrues. [Citation.] [¶] Generally speaking, a cause of action accrues at ‘the time when the cause of action is complete with all of its elements.’ [Citations.] An important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [Citation] [¶] . . . Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period. [Citation.]”

“The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. . . . [P]laintiffs are charged with presumptive knowledge of an injury if they have ‘ “ ‘ “information of circumstances to put [them] on inquiry” ’ ” ’ or if they have ‘ “ ‘ “the opportunity to obtain knowledge from sources open to [their] investigation.” ’ ” ’ [Citations.] In other words, plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation.” (Id. at pp. 807–808.) Accordingly, in order to rely on the delayed discovery rule, 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.” (McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 160, superseded by statute on another ground as stated in Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 633, fn. 3.) The plaintiff has the burden to “show diligence”; “conclusory allegations will not withstand demurrer.” (Ibid.)

Plaintiff asserts, and defendants do not dispute, that the statute of limitations for her causes of action was two or three years: “personal injury (two years), conversion (three years), and fraud (three years).” (See e.g., Code Civ. Proc., §§ 335.1 [intentional infliction of emotional distress and other personal injury claims, two years]; 338, subd. (d) [fraud, three years]; § 338, subd. (c) [conversion, three years].) The longest potentially applicable statute of limitations in this case was therefore three years.

We agree with the trial court that plaintiff did not plead the delayed discovery rule. Plaintiff asserts she had no reason to suspect any wrongdoing until her relationship with defendants began to “deteriorat[e]” in 2017, but the allegations in her complaint show that she knew as early as 2004 that defendants were trying to prevent her from moving back into her own home and “exert[ing] undue pressure and persuasion on [her] to execute [a] deed” that transferred half or all of her ownership interest in the House to her brother. Plaintiff argues it was reasonable for her to believe a family member’s promise that he would not take any ownership interest in the House, but the judicially noticed grant deeds—which plaintiff does not deny she signed—specifically state that plaintiff is transferring her ownership interest in the House to her brother. Had plaintiff engaged in “reasonable diligence” (McKelvey v. Boeing North American, Inc., supra, 74 Cal.App.4th at p. 160) by reading the grant deeds she signed in 2004, she would have been able to discover her brother’s lies and defendants’ true motives in precluding her from moving back into her own home.

Plaintiff argues that her “ongoing impaired mental state (caused by bipolar disorder and hallucinations)” also “serves to toll the applicable statutes of limitation.” She relies on Code of Civil Procedure section 352 subdivision (a), which provides in part that if “a person entitled to bring an action” “is, at the time the cause of action accrued either under the age of majority or lacking the legal capacity to make decisions, the time of the disability is not part of the time limited for the commencement of the action.” This section has been applied to periods during which, for example, a plaintiff is in a coma (Feely v. Southern Pacific Transportation Co. (1991) 234 Cal.App.3d 949, 951), is “incompetent, without basic physical or cognitive skills” (Alcott Rehabilitation Hospital v. Superior Court (2001) 93 Cal.App.4th 94, 96), or has “a condition of mental derangement which renders the sufferer incapable of caring for his property or transacting business, or understanding the nature or effects of his acts” (Hsu v. Mt. Zion Hospital (1968) 259 Cal.App.2d 562, 571).

Here, plaintiff alleged she was hospitalized in 2004 for a mental health condition and was “diagnosed with bi-polar disorder and hallucinations.” However, there is nothing in the complaint or the judicially noticed documents—other than a few conclusory statements that she lacked the mental capacity “at times” to understand what she was signing—that shows she was so incompetent, incapacitated, or mentally deranged between 2004 and 2017 such that the statute of limitations should have been tolled. In fact, her complaint includes allegations that show that in the same year she signed the grant deeds, she signed and understood a premarital agreement that set forth her and her fiancé’s property and other rights in detail. Because plaintiff did not allege facts to show “the inability to have made earlier discovery despite reasonable diligence” (McKelvey v. Boeing North American, Inc., supra, 74 Cal.App.4th at p. 160) or the lack of “legal capacity to make decisions” (Code Civ. Proc., § 352, subd. (a)), the trial court did not err in granting defendants’ motion for judgment on the pleadings.

Plaintiff argues that defendants should be equitably estopped from asserting a statute of limitations defense because they “ ‘induced [her] to refrain from filing suit [within the limitations period].’ ” She relies on Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 365 in which the court stated that equitable estoppel may apply where, for example, a defendant is “(1) . . . potentially liable for a construction defect [but] represents, while the limitations period is still running, that all actionable damage has been or will be repaired, thus making it unnecessary to sue, (2) the plaintiff reasonably relies on this representation to refrain from bringing a timely action, (3) the representation proves false after the limitations period has expired, and (4) the plaintiff proceeds diligently once the truth is discovered.”

Plaintiff asserts she trusted defendants because they are family, and because they repeatedly reassured her between 2006 and 2017 that they were taking care of the House. While this may be true, it does not change the fact that plaintiff knew or should have known in 2004, when she signed the grant deeds, that her brother’s statements to her were untrue. At that point, she was required to act with reasonable diligence, but did not do so and therefore the cause of action began to accrue. Plaintiff has not shown that defendants are equitably estopped from asserting a statute of limitations defense.

Finally, we conclude the trial court did not abuse its discretion in denying plaintiff a third opportunity to amend the complaint. As noted, the plaintiff has the burden of showing an abuse of discretion “by offering proposed amendments to this court that state a legally sufficient cause of action.” (Shields v. Hennessy Industries, Inc., supra, 205 Cal.App.4th at p. 785.) Here, plaintiff does not state how she can amend her second amended complaint to adequately plead around the statute of limitations, and we see no viable way for her to do so.

DISPOSITION

The judgment is affirmed. Defendants shall recover their costs on appeal.

_________________________

Petrou, J.

WE CONCUR:

_________________________

Siggins, P.J.

_________________________

Wick, J.*

A156285/Lew v. Lew et al.