INTRODUCTION

In this appeal, plaintiff Kristen Barbier seeks reversal of a judgment of dismissal

of her first amended complaint without leave to amend after the trial court sustained

without leave to amend the demurrer filed by her half-brother, defendant Kurt Beier. The

lawsuit alleged defendant cheated plaintiff out of her rightful share of the Doris and

Lawrence Kleinfelter Family Trust. Defendant had demurred on the grounds plaintiff’s

action was not timely brought within the applicable statute of limitations and that it was

barred by res judicata following plaintiff’s unsuccessful attempt to recover against him

and her attorney in connection with the distribution of the trust estate of their mother and

plaintiff’s stepfather. The trial court ruled that the first amended complaint was barred by

the three-year statute of limitations set forth in Code of Civil Procedure section 338.

Plaintiff appealed.1

On appeal, plaintiff argues that the trial court improperly sustained the demurrer

without leave to amend where there is no evidence to support the trial court’s conclusion

that the limitations period began to run no later than October 2016 because her damages

did not become “irremediable” until March 2017, and that equitable tolling principles,

which would have extended the limitations period by eight months, were not properly

taken into consideration. We affirm.

1 On appeal, defendant correctly notes that plaintiff has included numerous improper documents in her Appellant’s Appendix. We observe that her complaint and her appellate briefs also include improper matter. We agree and limit our review to the documents which were filed in the trial court, and matters properly alleged.

2

BACKGROUND

Because this appeal is from a judgment of dismissal upon an order sustaining a

demurrer without leave to amend, we summarize and accept as true all well-pleaded

material allegations of the complaint.2 (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4

Cal.5th 145, 156-157; see also, Hensler v. City of Glendale (1994) 8 Cal.4th 1, 8, fn. 3

(Hensler); Shoemaker v. Myers (1990) 52 Cal.3d 1, 7.) We do not, however, accept the

truth of contentions or conclusions of fact or law (Blank v. Kirwan (1985) 39 Cal. 3d 311,

318), or other allegations inappropriate in a formal legal pleading. We therefore limit the

background to the ultimate facts pled, omitting plaintiff’s legal conclusions and editorial

comments.

Doris and Lawrence Kleinfelter married in 1993. Doris had two children from two

different relationships: plaintiff and defendant, who are half-siblings. In 2009, Doris and

Lawrence created the Doris and Lawrence Kleinfelter Family Trust (KFT) naming

defendant as trustee. Doris died in March 2016. The following month, in April 2016, the

Riverside Public Guardian filed a petition to establish a conservatorship respecting

plaintiff’s stepfather, Lawrence Kleinfelter, Riverside Superior Court case No.

MCP1600329. Thereafter, defendant filed a petition to establish the trust. Plaintiff then

2 Defendant has requested that we judicially notice certain materials of which he had requested that the trial court take judicial notice. The trial court denied the request as unnecessary to its decision. However, we take judicial notice of the records and files in the prior litigation pursuant to Evidence Code sections 452 and 459, namely, Barbier v. Herrera, et. al., Riverside Superior Court, case No. RIC1803890, as well as Conservatorship of Lawrence Kleinfelter, Riverside Superior Court, case No.

MCP1600329.

3 attempted to submit two separate amendments to the trust, purportedly executed by her

mother in March 2011 and April 2015, which revoked proposed distributions to

defendant and directed those trust assets to plaintiff.3 Defendant filed an amended

petition challenging the validity of those amendments, which appeared to be forgeries.

During the litigation over the prospective distribution of the trust, plaintiff retained an

attorney to represent her with the intention of having the purported amendments

established as amendments to the original trust. However, plaintiff’s attorney did not

pursue the admission of the amendments and advised her to settle.

Plaintiff agreed to settle the trust dispute as part of the conservatorship proceeding

respecting Lawrence. As part of the settlement agreement, plaintiff also executed a (1)

request for dismissal with prejudice of the alleged amendments to the trust, (2) request

for withdrawal of the alleged amendments, (3) request for dismissal and withdrawal of

any and all rights or claims under the 2009 KFT, and (4) confirmation of establishment of

the 2009 KFT to be the only valid testamentary instrument of Lawrence and Doris

Kleinfelter.

Plaintiff also agreed to a distribution of the assets pursuant to the terms of the

original trust. In connection with the settlement, plaintiff then agreed to voluntarily

release and forever discharge defendant “from any and all claims, known and unknown,

asserted and not asserted, which [plaintiff] has had, now has, or may have against the

Released Parties as of the date of execution of this Agreement including, but not limited

3 Plaintiff also alludes to the fact that her brother lodged a criminal complaint against her for elder abuse.

4 to, any alleged existence and/or violation of: [¶] The alleged 2011 amendment to the

2009 Lawrence and Doris Kleinfelter; [¶] Family Trust Dated January 28, 2009; [¶]

The alleged 2015 amendment to the 2009 Lawrence and Doris Kleinfelter Family Trust

Dated January 28, 2009; [¶] The alleged existence of a 2015 Trust or any other trust

other than the 2009 KFT; [¶] The alleged existence of any other amendment, revocation,

rescission of the 2009 Lawrence and Doris Kleinfelter Family Trust Dated January 28,

2009; [¶] The alleged violation of any rights to any livestock as part of the 2009

Lawrence and Doris Kleinfelter Family Trust Dated January 28, 2009; [¶] Any dispute

or challenge to the attorney’s fees and costs of litigation incurred in the Action and

supported by the 2009 KFT Trust Property; and [¶] The confirmation and establishment

of The 2009 KFT; or [¶] Any allegation or claim that the 2009 KFT is not valid or that

the 2009 KFT is not valid in its original form.”

On March 7, 2017, at the mandatory settlement conference in the matter pertaining

to the KFT, the trial court went over each provision of the settlement agreement with

plaintiff, after which, plaintiff stated her assent and signed the agreement. At the

conclusion of the recitation of the terms of the settlement, the court admonished plaintiff

that as a result of the settlement, “there will be no other financial relationship between

you and your brother or you and the estate of your parents.” Plaintiff responded, “That’s

a blessing, yeah.” The court asked plaintiff if she understood and agreed to the terms, to

which plaintiff stated she did, without qualification.

5 Nevertheless, plaintiff alleges the next day she commenced legal research and by

March 29, 2017, she alleges she filed a declaration stating her intent to object to the

settlement due to her attorney’s acts of coercing her into signing the settlement

agreement. However, she was late to the final hearing and the case was closed.

Nevertheless, she executed a confirmation to the establishment of the KFT and the agreed

upon withdrawal of the alleged amendments to that trust.

Plaintiff then filed an action against her attorney, Barbier v. Herrera, et al.,

Riverside Superior Court case No. RIC1803890, for his conduct in not persisting in the

confirmation of the purported amendments to the trust and for coercing her into the

settlement by telling her that if she did not accept the settlement, he “would walk.”

Finally, plaintiff filed a complaint against defendant Kurt Beier on March 17,

2020, alleging various causes of action arising from the confirmation, distribution and

settlement of the KFT matter. Defendant demurred, but before the court could rule on the

demurrer, plaintiff filed the first amended complaint (FAC), which is the operative

pleading. In this complaint, plaintiff alleged two causes of action: breach of fiduciary

duty and unjust enrichment, arising from the settlement of the trust.

Defendant demurred to this complaint alleging that the action was barred by the

statute of limitations, as well as by the doctrines of res judicata, claim preclusion, and/or

estoppel by judgment. At the hearing on July 22, 2020, the court sustained the demurrer

without leave to amend on the ground the operative statute of limitations, based on the

gravamen of the action, was the three-year limitation period for fraud. The trial court

6 found that defendant’s alleged “misdeeds” were known to or discovered by plaintiff no

later than October 21, 2016, when she retained counsel to represent her in the efforts to

prove the enforceability of the alleged trust amendments.

On July 28, 2020, the order sustaining the demurrer without leave to amend was

filed, along with a judgment of dismissal of the FAC, and notice of entry of judgment

was issued on August 21, 2020. Plaintiff appealed on October 6, 2020.

DISCUSSION

Plaintiff argues the trial court erred in dismissing her action as barred by the

statute of limitations. In connection with this assertion, she maintains there is

“insufficient evidence” that she discovered defendant’s alleged misdeeds no later than

October 2016, that instead she discovered her brother’s breach of fiduciary duty on

March 30, 2017 (after she dismissed her challenges to the confirmation of the original

trust while represented by counsel), and that even if the limitations period commenced

running prior to March 30, 2017, the limitations period should be tolled due to her

attorney’s concealment of her brother’s misdeeds as well as her health condition.4 We

disagree.

4 Plaintiff’s complaint includes a section entitled “Statement of the Issues,” which describe at least six errors warranting reversal. Several of the issues described in that section refer to alleged fraudulent and unethical acts committed by her retained attorney in the course of the conservatorship case, which were also included in her separate legal action against the attorney. We disregard these claims because they are irrelevant to the alleged breach of fiduciary duty and unjust enrichment related to her brother’s alleged “misdeeds.”

7 a. General Principles Applicable to Review of an Order Sustaining a

Demurrer Without Leave to Amend.

A general demurrer presents the same question to the appellate court as to the trial

court, namely, whether the plaintiff has alleged sufficient facts to justify any relief,

notwithstanding superfluous allegations or claims for unjustified relief. (B & P

Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 952–953, citing

Harnish v. Bramer (1886) 71 Cal. 155, 158; Matteson v. Wagoner (1905) 147 Cal. 739,

742; California Trust Co. v. Cohn (1932) 214 Cal. 619, 628; Alcorn v. Anbro

Engineering, Inc. (1970) 2 Cal.3d 493, 496.)

We review de novo the order sustaining the demurrer, treating the demurrer as

admitting all material facts properly pleaded, but, because only factual allegations are

considered on demurrer, we must disregard any contentions, deductions or conclusions of

fact or law. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318; WA Southwest 2, LLC v. First

American Title Ins. Co. (2015) 240 Cal.App.4th 148, 151, citing People ex rel. Gallegos

v. Pacific Lumber Co. (2008) 158 Cal.App.4th 950, 957.) In reviewing the lower court’s

ruling on demurrer, we base our statement of the factual and procedural background on

the pleadings and such matters as may be judicially noticed. (Careau & Co. v. Security

Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1381, 1386; Hendy v. Losse

(1991) 54 Cal.3d 723, 742.)

“When a demurrer is sustained, we determine whether the complaint states facts

sufficient to constitute a cause of action.” (Blank v. Kirwan, supra, 39 Cal.3d at p. 318,

8 citing Hill v. Miller (1966) 64 Cal.2d 757, 759.) When a demurrer is sustained without

leave to amend, Blank v. Kirwin, supra, instructs us to “decide whether there is a

reasonable possibility that the defect can be cured by amendment: if it can be, the trial

court has abused its discretion and we reverse; if not, there has been no abuse of

discretion and we affirm.” (Blank v. Kirwin, supra at p. 318; Kilgore v. Younger (1982)

30 Cal.3d 770, 781; Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636.) “The burden

of proving such reasonable possibility is squarely on the plaintiff.” (Cooper v. Leslie Salt

Co., supra, at p. 636.)

b. The Limitations Period for Fraud Applies and It Commenced When

Plaintiff Disputed the Validity of the Original Trust and Retained Counsel to Introduce

the Disputed Amendments to the Trust.

The complaint alleges that as early as the commencement of the conservatorship

proceedings respecting Lawrence Kleinfelter, plaintiff considered her brother’s actions as

trustee of the KFT to be in violation of his fiduciary duty, and that he was managing the

trust in a manner that deprived plaintiff of her rightful share of the trust estate pursuant to

the two amendments that favored her, to his own financial benefit. Importantly, she

specifically alleged that his “breaches of fiduciary duty oppressed and ultimately

deprived Beneficiary Kristen Barbier (Plaintiff) of her rights and property that her parents

directed she receive; Trustee/Beneficiary/Debtor Kurt Beier acting for his own financial

benefit.” That said, the gravamen of her complaint, irrespective of the titles of the causes

of action, was for fraud.

9 “Civil actions are governed by statutes of limitations that dictate the time period

within which a cause of action may be commenced.” (Thomson v. Canyon (2011) 198

Cal.App.4th 594, 604; Code Civ. Proc., § 312.) For all statutes of limitations, the statute

begins to run when the “cause of action accrues.” (Fox v. Ethicon Endo–Surgery, Inc.

(2005) 35 Cal.4th 797, 806.)

“There is a limitation to the applicability of this statute of limitations. . . . [A]

plaintiff is not permitted to evade a statute of limitations by artful pleading that labels a

cause of action one thing while actually stating another.” (Thomson v. Canyon, supra,

198 Cal.App.4th at p. 606.) “‘To determine the statute of limitations which applies to a

cause of action it is necessary to identify the nature of the cause of action, i.e., the

“gravamen” of the cause of action. [Citations.] “[T]he nature of the right sued upon and

not the form of action nor the relief demanded determines the applicability of the statute

of limitations under our code.”’” (Id., at pp. 606-607, quoting Hensler, supra, 8 Cal.4th

at pp. 22–23.)

In Thomson, the plaintiff designated the claim as one for breach of a fiduciary

duty, but the court, looking to the gravamen of the complaint, where plaintiff retained

realtors to market her property and reconvey it to her, concluded that defendant’s acts of

conveying the property to a third party constituted actual or constructive fraud, indicating

that the applicable statute of limitations was the Code of Civil Procedure section 338,

subdivision (d) three-year limitations period. “Neither the caption, form, nor prayer of

the complaint will be deemed conclusive in determining the nature of the liability from

10 which the cause of action flows. On the contrary, the true nature of the action will be

ascertained from the basic facts a posteriori.” (Agair, Inc. v. Shaeffer (1965) 232

Cal.App.2d 513, 516; see also, Parker v. Walker (1992) 5 Cal.App.4th 1173, 1189 [action

subject to statute of limitations for oral contract despite plaintiff’s assertion it was an

action to enforce a trust].)

Here, plaintiff’s claim is that she was entitled to a greater distribution under two

purported trust amendments, but that her brother, as trustee, attempted to conceal the two

purported trust amendments to deprive her of her rights under them for his own financial

advantage. So stated, the gravamen of her complaint is one for fraud, subject to a three-

year statute of limitations pursuant to Code of Civil Procedure, section 338, subdivision

(d). The three-year limitation applies to any cause of action, however labeled, in which

fraud is the basis of the legal injury regardless of whether the complaint seeks legal or

equitable relief or pleads a cause of action in tort or contract. (Hatch v. Collins (1990)

225 Cal.App.3d 1104, 1110.)

As the trial court correctly concluded, the statute of limitations for breach of

fiduciary duty is three years or four years, depending on whether the breach is fraudulent

or nonfraudulent, and the same is true for claims for unjust enrichment. (See American

Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1479; see also,

FDIC v. Dintino (2008) 167 Cal.App.4th 333, 347-348.) Having made multiple

allegations demonstrating that the gravamen of her claim against her brother was

11 grounded on fraud, plaintiff’s action was properly deemed subject to the three-year

limitations period.

The next question is when the statute of limitations commenced to run. Plaintiff

argues it did not commence to run until after she signed the settlement agreement and

released all claims because her attorney concealed fraudulent activity. Unfortunately, the

allegations of the complaint belie this assertion. First, the complaint does not state a

claim against her attorney, which would be barred by the fact it is the subject of a

separate legal action.5 (Code Civ. Proc. § 430.10, subd. (c) [“There is another action

pending between the same parties on the same cause of action.”].)

Second, vis-à-vis the complaint against her brother, the complaint specifically

alleges that on October 21, 2016, she retained the attorney in order to combat her

brother’s misrepresentations in the handling of the KFT estate. Throughout the

complaint she alleges her brother’s alleged fraudulent conduct led her to intervene in the

matter to introduce the trust amendments favorably disposing of assets to her. The only

reasonable inference is that she had discovered her brother’s alleged fraudulent conduct

(to which the court refers to as “misdeeds” prior to retaining counsel, and that her

motivation in retaining counsel was to expose her brother’s “misdeeds.”

5 Plaintiff refers to the action as unresolved.

12 The court correctly identified October 21, 2016 as the date on which the statute of

limitations commenced to run.6 That being the case, the limitations period would have

expired three years from that date in 2019, unless tolled.

c. The Running of the Statute of Limitations Was Not Tolled by the Conduct of

her Attorney or Her Health.

Plaintiff argues that even if the trial court correctly identified the date of discovery

of the fraud, and correctly determined that the three-year statute of limitations applies, the

limitation period was tolled for eight months, including five months during which her

attorney concealed the fraud allegedly occurring during the trust litigation in the

conservatorship case, with an additional three months allowance because of her ill health.

We disagree.

Code of Civil Procedure section 352, subdivision (a), provides that “[i]f a person

who is entitled to bring an action, mentioned in chapter 3 (commencing with section 335)

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.” Code of Civil Procedure sections 352 (and 354,

governing state of war) describes the particular personal disabilities which will toll the

6 Plaintiff makes various arguments against the identification of this date as the time when the statute commenced to run, most of which blame her retained attorney for concealing information about the trust litigation, but none holds water. The simple fact is that she was already convinced her brother was attempting to cheat her out of her inheritance when she retained counsel to bring that situation to light. Nothing the attorney did hid from plaintiff the facts underlying her action against her brother vis-à-vis his handling of the trust estate.

13 statute of limitations. “These statutory conditions have been held to be exclusive, and

they do not include either physical debility or hospital confinement.” (Sanchez v. South

Hoover Hospital (1976) 18 Cal.3d 93, 102-103, citing Baker v. Beech Aircraft Corp.

(1974) 39 Cal.App.3d 315, 322; see Phillips v. Standard Acc. Ins. Co. (1960) 180

Cal.App.2d 474, 481-482.)

Plaintiff’s attorney’s alleged deeds did not conceal the original fraud that

motivated plaintiff to hire him to ensure the purported amendments to the KFT were

presented to the court for consideration in the conservatorship matter. The brother’s

conduct vis-à-vis the amendments to the trust is the basis for this complaint. Even if her

attorney committed an unauthorized act (which we are unprepared to say), the acts did

not conceal her brother’s alleged fraud in preventing the two purported amendments from

being filed. Because her brother’s actions respecting the purported amendments were the

gravamen of her action against him, and because she hired the attorney to address them,

her attorney’s conduct during the litigation did not conceal the brother’s conduct or toll

the running of the statute.

Plaintiff also asserts she is entitled to an additional three months of tolling of the

limitations of actions because of her diagnosis of leukemia. Unfortunately, she cites no

decisional or statutory law under which a limitation of actions may be tolled for a health

condition such as leukemia. Her physical condition, serious as it may have been, did not

toll the running of the statute of limitations.

14 Finally, plaintiff argues that if we conclude that the limitations period were not

tolled for eight months, her “abundant evidence of fraud and deceit by two fiduciaries”

warrants reversal of the dismissal of her action. Unfortunately, absent a legal basis to

disregard the untimeliness of the filing of the complaint, reversal is not an option. A

party’s desire for personal vindication, without a sound legal basis, is not a valid reason

to ignore the important policies reflected in the statutes governing limitations of actions.

The statute of limitations bars the action.

d. Notwithstanding the Statute of Limitations, the Action Would Be Barred by

the Settlement Agreement.

The demurrer was decided on solely the ground that the action was barred by the

applicable statute of limitations. However, defendant also demurred because the

settlement agreement released both parties from any claims relating to the subject matter

of the action, and the agreement, accompanied by a dismissal with prejudice, bars further

litigation on the subject matter covered in the agreement. Although Plaintiff attempts to

circumvent the consequence of the settlement by arguing she was forced to agree, and did

so only grudgingly or unwillingly, the reporter’s transcript of the hearing at which the

settlement was memorialized on the record reveals a different image.7

7 We cannot ignore the fact that this action against plaintiff’s brother was filed only after the entirety of the trust estate had been distributed to the beneficiaries. Respondent points out plaintiff’s actions indicate a desire to avoid the effect of the “no contest” clause contained in the trust by waiting until she had received her inheritance before challenging the validity of the trust. There is some merit to that point.

15 In any event, the settlement agreement is binding on both parties to the prior

action. To that extent, plaintiff has waived any claims she might have against her brother

arising from the KFT. A compromise settlement can be the basis of a final judgment

thereby operating as a merger and bar of all preexisting claims and causes of action.

(Rodriguez v. Fireman’s Fund Ins. Co. (1983) 142 Cal.App.3d 46, 54.) “‘“‘Where the

parties to an action settle their dispute and agree to a dismissal, it is a retraxit and

amounts to a decision on the merits and as such is a bar to further litigation on the same

subject matter between the parties.”’”’ (Moradi-Shalal v. Fireman’s Fund Ins.

Companies (1988) 46 Cal.3d 287, 312, italics omitted, quoting Datta v. Staab (1959) 173

Cal.App.2d 613, 621; see also Rodriguez v. Fireman’s Fund Ins. Co., supra, 142

Cal.App.3d at p. 54.)

Here, there were two valid grounds for an order dismissing the action without

leave to amend. The trial court correctly sustained the defendant’s demurrer without

leave to amend.

DISPOSITION

The judgment is affirmed. Respondent is awarded costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

FIELDS

J.

RAPHAEL

J.

16