Judge Upinder S. Kalra, Case Number: 21STCV39140, Date: 2023-11-17 Tentative Ruling

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Motion for Leave to File Third Amended Third-Party Complaint: Plaintiff-Intervenors Anita Kidd and Lawyrence H. Biondi, S.J., as Co-Trustees of the Leroy E. Biondi Revocable Trust

Motion for Leave to File Third Amended Third-Party Complaint: Defendants Peter Pierootti, Aptco, LLC, and Anna Marie Pierotti

Demurrer: Plaintiff-Intervenors Anita Kidd and Lawyrence H. Biondi, S.J., as Co-Trustees of the Leroy E. Biondi Revocable Trust

1. An Order granting leave to file the attached proposed Third Amended Third-Party Complaint

1. Demurrer to the entire Third Amended Third-Party Complaint for failure to state sufficient facts to constitute a cause of action.

2. Demurrer to the Third Amended Third-Party Complaint is OVERRULED in its entirety.

On October 22, 2021, Plaintiff Estate of Etsuko Toguri, by and through Trustee Kathleen “Miki” Toguri (“Plaintiff”) filed a complaint against Anna Marie Pierotti, Peter Pierotti, and Aptco, LLC. (“Defendants.”) The complaint alleged six causes of action: (1) Breach of Fiduciary Duty, (2) Aiding and Abetting Breach of Fiduciary Duty, (3) Unjust Enrichment, (4) Fraudulent Omission, (5) Fraudulent Misrepresentation, and (6) Conversion.

The complaint alleges that Plaintiff Toguri along with Osvaldo Pierotti and Roy Biondi entered a Partnership Agreement dealing with various real estate ventures, including the acquisition of a property in Rancho Cucamonga, California. The property was eventually sold for $45 million, and while the property was owned by the partnership, Plaintiff Etsuko, as a one-third member, did not receive any of the proceeds. Plaintiff alleges that Osvaldo along with his wife and son, conspired to funnel the proceeds to a shell corporation owned by Osvaldo’s son.

On November 23, 2021, Defendants Anna Marie Pierotti, Peter Pierotti, Aptco, LLC filed an Answer.

On November 29, 2021, the matter was Removed to the Federal District Court for the Central District of California.

On May 4, 2023, Plaintiff filed a First Amended Complaint, which added causes of action Conspiracy to Breach Fiduciary Duty, Conspiracy to Commit Fraud, and Aiding and Abetting Fraud, as well as Defendants Richard Arshonsky and Levinson, Arshonsky & Kurtz, LLP.

On May 4, 2023, Plaintiffs in Intervention Father Lawrence H. Biondi, S.J. and Anita M. Kidd, as Trustees of the Leroy E. Biodi Revocable Trust, filed Plaintiff-Intervenors Complaint with five causes of action for: (1) Unjust Enrichment, (2) Accounting, (3) Declaratory Judgment, (4) Breach of Fiduciary Duty, and (5) Fraud by Omission.

On July 3, 2023, Defendants in Intervention filed a Demurrer to the Third-Party Complaint, which the court SUSTAINED with 20 days leave to amend on July 27, 2023.

On August 16, 2023, Plaintiffs in Intervention filed a First Amended Third-Party Complaint (Amended TPC) with ten causes of action for: (1) Unjust Enrichment, (2) Fraud, (3) Conspiracy to Defraud, (4) Aiding & Abetting Fraud, (5) Fraudulent Omission, (6) Breach of Fiduciary Duty, (7) Conspiracy to Breach Fiduciary Duties, (8) Aiding & Abetting Breach of Fiduciary Duties, (9) Conversion, and (10) Declaratory Judgment.

On October 3, 2023, Defendants Peter Pierotti (Peter) and Aptco, LLC (Aptco) filed the instant Demurrer and Motion to Strike portions of the First Amended Third-Party Complaint. On October 4, 2023, Defendant in Intervention Anna Marie Pierotti (Anna Marie) filed a joinder to the Demurrer and the Motion to Strike. Plaintiff-Intervenors Father Lawrence H. Biondi, S.J., and Anita M. Kidd (Trustees) filed oppositions on October 12, 2023. Peter and Aptco filed reply briefs on October 25, 2023.

On October 9, 2023, the Trustees filed an ex parte application to advance a hearing date or shorten notice re Motion for Leave to File Amended Third-Party Complaint.[1] The court, on its own motion, continued that hearing date to November 17, 2023.

On October 23, 2023, the Trustees filed an Amended Motion for Leave to File Second Amended Third-Party Complaint. Peter and Aptco filed an opposition on November 3, 2023. The Trustees filed a reply on November 8, 2023.

On December 15, 2023, Trustees filed a Revised Motion for Leave to File an Amended Third Party Complaint.

On January 9, 2024, the court GRANTED the parties’ Stipulation to Consolidate the Hearings on the Revised Motion for Leave to File an Amended Third-Party Complaint with the Demurrer filed by Defendants, Peter and Aptco and joined by Defendant Anna-Marie. The Stipulation provided that there would be no further briefing on the previously-filed Demurrer to the Third-Party Complaint.

On January 12, 2024, Defendants Peter and Aptco filed an Opposition and Defendant Anna Marie filed a Joinder to the Opposition.

Leave to amend is permitted under Code of Civil Procedure § 473(a) and § 576. The policy favoring amendment and resolving all matters in the same dispute is “so strong that it is a rare case in which denial of leave to amend can be justified. [Citation.]” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422.) Notwithstanding the “policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only ‘where no prejudice is shown to the adverse party . . . .’ [citation]. A different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation].” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.)

A motion for leave to amend a pleading must also comply with the procedural requirements of California Rules of Court, Rule 3.1324, which requires a supporting declaration to set forth explicitly what allegations are to be added and where, and explicitly stating what new evidence was discovered warranting the amendment and why the amendment was not made earlier. The motion must also include (1) a copy of the proposed and numbered amendment, (2) specifications by reference to pages and lines the allegations that would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for delay. (See Cal. Rules of Court, Rule 3.1324(a), (b).)

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.¿ (Code Civ. Proc. § 430.30(a); Blank v. Kirwan(1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)¿

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.¿ App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.¿ (Blank, supra, 39 Cal. 3d at p. 318.)¿

Pursuant to Code Civ. Proc. §§ 430.10(e), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. (Hahn v. Mirda, supra, 31 Cal. 4th at p. 745.)¿

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. (CCP) §430.41 and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to CCP §430.41(a)(2) & (3).¿This requirement also applies to motions to strike. (CCP § 435.5.) Here, the parties sufficiently met and conferred via conference call on September 28, 2023. (Clements Decl. ¶¶ 2-3.) Therefore, the meet and confer requirement is met.¿

Trustees contend that the court should allow an the Amended TPC because leave to amend is liberally granted, Defendants Peter, Aptco, and Anna Marie will not be prejudiced by the amendment, and that the additional proposed causes of action relate to the same set of core facts. Defendants Peter, Aptco, and Anna Marie argue that the court should deny Trustees’ motion because it still does not comply with CRC Rule 3,1324(b), their claims violate the sham pleading doctrine, they are judicially estopped from now claiming the Trust was a partner since the district court granted their motion to intervene based on their position that Roy Biondi was a partner, and their claims are still time-barred.[2]

Generally, following a sustained demurrer, an order granting leave to amend only authorizes a party to replead and add the cause of action that was subject to the order sustaining the demurrer. There is an exception to this general rule. In Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015 (Alacer), the Court of Appeal found that the plaintiff’s adding a new cause of action to a complaint after demurrer did not exceed the scope of leave to amend. There, the new cause of action “directly respond[ed] to the [trial] court’s reasons for sustaining the earlier demurrer” and while the plaintiff “may not have been free to add any cause of action under the sun” the cause of action she did add was allowable. (Id. at 1015.) The similarities to the Trustees’ 3TPC with Alacer are striking. First, the court granted leave to the Trustees to amend their third-party complaint pertaining to the statute of limitations, fraud, and fiduciary duty. (Order of Court’s Final Ruling, July 27, 2023.) The Trustees filed a First Amended Third-Party Complaint on August 16, 2023 that added factual allegations and causes of action. As in Alacer, where the new cause of action directly responded to the articulated reasons for sustaining the demurrer, here, the new causes of action served to bolster the Trustees’ claims for fraud, breach of fiduciary duty, and problems with the statute of limitations. Accordingly upon closer look, and as Alacer provides, the Trustees have not exceeded the scope of their granted leave post demurrer.[3] As such, express permission to amend the complaint was not required because the prior order gave moving party implicit permission under Alacer.

Accordingly, the court GRANTS Trustees’ motion for leave to file a Third Amended Third Party Complaint and deems it filed as of today’s date.

Moving Defendants contend that all of the Trustees’ claims are time-barred because they accrued on April 7, 2013, when Roy Biondi died, that the Trustees had a legal duty to protect and preserve the trust property upon Mr. Biondi’s death, and any alleged transfer of the partnership interest to the trust is a sham. The Trustees argue that Moving Defendants should be estopped from arguing statute of limitations because they induced inaction by false representation or false concealment. Additionally, the Trustees argue that their claims accrued in 2021, not in 2013, and that the recorded options do not defeat the delayed discovery rule because the Trustees had no duty to continually monitor public recordings to see if the Pierotti’s accepted an offer on the property.[5] Finally, the Trustees argue that Roy Biondi’s death did not dissolve the partnership because he had already transferred his partnership interest, without objection, to the Roy Biondi Trust in 1998. Moving Defendants reiterate their argument that such a transfer was legally ineffective, if it occurred, and if it did, it violated the partnership agreement.[6]

“Equitable estoppel does not extend a limitations period but rather comes into play only after the limitations period has run and addresses itself to the circumstances in which a party will be estopped from asserting the statute of limitations as a defense to an admittedly untimely action because his conduct has induced another into forbearing suit within the applicable limitations period.” (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins Ins. Exchange (2005) 132 Cal.App.4th 1076, 1089 (Doheny Park) [quoting Battuello v. Battuello (1998) 64 Cal.App.4th 842, 847-848.]; see also Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 383; Doe v. Marten (2020) 39 Cal.App.5th 1022, 1028.) The doctrine of equitable estoppel is based on the principle “that no man will be permitted to profit from his own wrongdoing in a court of justice.” (Doheny Park, supra, at 1089.) The doctrine has four elements: (1) the party to be estopped must be apprised of the facts; (2) they must intend that their conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) they must rely upon the conduct to their injury. (Doe v. Marten, supra, at 1028 [internal citations omitted].) The requisite act or omission must involve a misrepresentation or nondisclosure of a material fact bearing on the necessity of bringing a timely suit. (Ibid.) Additionally, it is enough that the defendant’s conduct induced the plaintiff to delay commencement of an action. (Id. at 1029.) It is not necessary for the defendant to actively conceal or intend to mislead the plaintiff for the doctrine to apply. (Id. at 1030.) Finally, unless the underlying facts are undisputed, the existence of an estoppel is generally a question of fact. (Ibid.)

Equitable tolling stops the limitations period from running during the tolling event, begins to run again after the tolling event concludes, and extends the deadline for suit by tacking the tolled period to the limitations period. (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370-371.) A plaintiff must specifically plead facts to support equitable tolling when a cause of action is time-barred on its face. (Long v. Forty Niners Football Co., LLC (2019) 33 Cal.App.5th 550, 555.) Equitable tolling may apply to fraudulent concealment cases “to disarm a defendant who, by his own deception, has caused a claim to become stale and a plaintiff dilatory.” (Regents of Univ. of Calif. v. Sup. Ct. (Molloy) (1999) 20 Cal.4th 509, 533.) The tolling period is so long as the plaintiff’s reliance on the misrepresentation is reasonable. (Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 637-638.)

The difference between equitable estoppel and equitable tolling is whether the plaintiff was aware of their claim during the statutory period. In equitable estoppel claims, the plaintiff is lulled into inaction by a defendant’s misrepresentations. (See Sagehorn v. Engle (2006) 141 Cal.App.4th 452, 460.) Equitable tolling, on the other hand, applies when due to the defendant’s fraudulent conduct resulting in concealing the operative facts that are the basis of the action, the plaintiff failed to discover those operative facts, and due diligence by the plaintiff to discovery those facts. (Id. at 460-461.)

Previously, the court found that Trustees failed to sufficiently allege facts tolling the statute of limitations for every cause of action due to induced inaction by fraudulent concealment or that the delayed discovery rule applies. Now, upon reviewing the Third Amended Third-Party Complaint (3TPC), the court agrees with the Trustees that they have directly responded to the Court’s prior notice of deficiencies by significantly bolstering the factual allegations. In sum, the court finds’ that Trustees have now sufficiently alleged facts to establish a basis to apply the doctrine of equitable estoppel or equitable tolling to preclude Moving Defendants from asserting a limitations defense. The 3TPC alleges that Roy Biondi created his Trust on June 11, 1998 and transferred all of his property to it. (3TPC ¶¶ 30, 32.) The 3TPC alleges that the Trust “continued to contribute to the Property’s maintenance and taxes for forty years, including after [Roy Biondi’s] death in 2013 at the request of his Partners.” (3TPC ¶ 31, see also Exhibit C and Exhibit D attached to the 3TPC.)[7] Roy Biondi updated the Trust in 2010 and reaffirmed his plan to hold all of his property in the Trust. (3TPC ¶ 32.) Moving Defendants and Roy Biondi’s Partners had actual knowledge that Roy Biondi transferred all of his property, including his Partnership interest, to the Trust. (3TPC ¶¶ 30, 32.) Additionally, the 3TPC alleges that Defendants Peter and Anna Marie represented to the Trustees that distributions would be forthcoming up until October 5, 2021 when Defendant Peter indicated that he might take the position that the Trust’s interest in the partnership had terminated. (3TPC ¶ 50.) Trustees did not have a copy of the fully executed Partnership Agreement in October 2021. (3TPC, Exhibit I [wherein Trustees request such a copy.]) At least on October 17, 2021, Trustees still believed that the Trust would receive its proportionate share of the Property. (3TPC, Exhibit I.) Taken in context and considering these factual allegations as true on demurrer, the Trustees have sufficiently alleged that the various limitations periods for their claims should be equitably estopped or tolled.

Accordingly, the court OVERRULES the demurrer on statute of limitations grounds.

Moving Defendants contend that this cause of action fails because Defendants Peter, Aptco, and Anna-Marie did not owe a fiduciary duty to the Trustees. Trustees argue that they alleged facts supporting a confidential relationship whereby the Moving Defendants voluntarily accepted or assumed to accept the confidence of Trustees.

The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that breach.” (O’Neal v. Stanislaus County Employees’ Retirement Assn. (2017) 8 Cal.App.5th 1184, 1215.) A fiduciary duty may be imposed by law or undertaken by agreement. (GAB Business Services, Inc. v. Lindsey & Newsom Claim Services, Inc. (2000) 83 Cal.App.4th 409, 416 [disapproved on other grounds by Reeves v. Hanlon (2004) 33 Cal.4th 1140.]) A confidential relationship is a fiduciary duty undertaken by agreement whereby a person voluntary assumes a position of trust and confidence. (Id. at p. 417.) Whether a confidential relationship exists is a question of fact. (Id. at pp. 417-418.)

Previously, the court found that there were no specific factual allegations to support Trustees conclusory allegation that there was some “confidential relationship” [8] with Peter and Anna Marie,.Upon reviewing the 3TPC, the court agrees that Trustees sufficiently alleged a cause of action for breach of fiduciary duty.[9] Notably, the element at issue is whether a fiduciary duty existed. First, Defendants Peter and Anna Marie acted on behalf of the partnership and on behalf of Trustees numerous times. (3TPC ¶¶ 36, 38, 39, 40, 41, 42, 43, 45, 47, 49, 50, 51, and 54.) Second, Defendants Peter and Anna Marie had regular, routine conversations with Trustees as to status on the Property sale and partnership matters. (3TPC ¶¶ 42, 43, 45, 47, 49, 50.)

Accordingly, the court OVERRULES the demurrer to the Sixth Cause of Action, Seventh Cause of Action, and Eighth Cause of Action.

Moving Defendants contend this cause of action fails because Defendants Peter, Aptco, and Anna-Marie did not owe a duty to disclose alleged material facts to the Trustees and the Trustees failed to sufficiently plead reliance.[10]

“The elements of fraud, which give 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.” (Lazar v. Superior Court¿(1996) 12 Cal.4th 631, 638.)¿

“In California, fraud must be pled specifically; general and conclusory allegations do not suffice…this particularity requirements necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tenders.” (Lazar, supra, at p. 645; Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469; Perlas v. GMAC Mort., LLC (2010) 187 Cal.App.4th 429, 434 [requiring plaintiffs who claim fraud against a corporation to allege the names of the persons who made the misrepresentations, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written.]) Fraud allegations need not be liberally construed, general pleading of the legal conclusion of fraud is insufficient, and every element of the cause of action for fraud must be alleged fully, factually and specifically. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal. App. 3d 1324, 1331.)

“[T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, he plaintiff must have sustained damage.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.)

Upon reviewing the 3TPC, the court finds’ that Trustees have now sufficiently pleaded a cause of action for fraud by omission/concealment. First, as discussed above, duty has been sufficiently alleged. Second, the Trustees allege that Defendants Anna Marie and Peter failed to disclose what Peter was doing with the property, the sale of the property, the issuance of the options on the Property, the ultimate price it sold for in 2017. (3TPC ¶¶ 113, 114.) Additionally, Trustees allege that Defendants Anna Marie and Peter told Trustees that the Property sold for $8,000,000 instead of $45,000,000. (3TPC ¶ 116.) Third, Defendants Anna Marie and Peter knew the property sold for $45,000,000 and not $8,000,000. (Ibid.) Fourth, Defendants Anna Marie and Peter intended for Trustees to rely on the misrepresentations because they made it appear that they sold the property in an arms-length transaction and repeatedly assured Trustees that there would be forthcoming distributions from the sale. (3TPC ¶¶ 50, 52, 116.) Fifth, the Trustees justifiably relied on Defendants Peter and Anna Marie because they had acted on behalf of the Partnership numerous times before and continued to assure Trustees as late as 2021that their proportionate share of the partnership would be forthcoming. (3TPC ¶¶ 36, 38, 39, 40, 41, 42, 43, 45, 47, 49, 50, 51, and 54.) Finally, the Trustees allege financial damages from deprivation of their share of proceeds from the Property sale. (3TPC ¶ 125.) As to Defendant Aptco, Trustees sufficiently alleged an alter-ego theory. (3TPC ¶ 73.)

Accordingly, the court OVERRULES the demurrer to the Second Cause of Action, Third Cause of Action, Fourth Cause of Action, and Fifth Cause of Action.

Moving party offers no further argument as to the ninth and tenth causes of action. Accordingly, the court OVERRULES the demurrer to those causes of action as well.

2.Demurrer to the Third Amended Third-Party Complaint is OVERRULED in its entirety.

[1] This would be a Second Amended Third-Party Complaint.

[2] The court is not entertained by counsel’s hypothetical discussion between Trustees and their counsel. (Opp. at 10:22-11:10.) “Personal attacks on the character or motives of the adverse party, his counsel or his witnesses are misconduct.” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 295.) While the court appreciates zealous advocacy, it cautions against such attacks and superfluous pop culture references.

[3] The court acknowledges that it previously indicated that the Trustees needed to comply with CRC, Rule 3.1324 and formally move for leave to amend their third-party complaint to include new causes of action. Although not required under Alacer, there does appear to be substantial compliance with the rules of court. First, the motion includes the proposed amended pleading. (CRC, Rule 3.1324(a)(1).) Second, the motion includes a redlined copy of the proposed amended pleading indicating the new allegations and any deleted allegations. (CRC, Rule 3.1324(a)(2)-(3).) As to compliance with the declaration pursuant to Rule 3.1324(b), the effect of the proposed Third Amended TPC is to add additional, specific factual allegations which address the deficiencies identified at the July 27, 2023 and November 17, 2023 demurrer hearings and to support additional causes of action for Fraud, Conspiracy to Defraud, Aiding & Abetting Fraud, Conspiracy to Breach Fiduciary Duties, Aiding & Abetting Breach of Fiduciary Duties, and Conversion. (Davis Decl., ¶ 3.) The amendment is proper because leave to amend is liberally granted and it is necessary to add additional allegations, add clarity about which allegations are directed to which Pierotti family member, and to add additional causes of action supported by the additional allegations. (Davis Decl. ¶ 4.) The original request for amendment was on October 9, 2023. (Davis Decl. ¶ 12.) Only CRC, Rule 31324(b)(3) concerning when the facts were discovered is at issue. According to Trustees, the facts giving rise to the amended allegations were discovered during communications between counsel and the clients on August 2, 11, and 15, 2023.[3] (Davis Decl. ¶ 5.) However, the declaration goes on to state the Trustees related to their counsel that Roy Biondi communicated the facts of his trust to them and other family members upon formation of the Trust before his death. (Davis Decl. ¶ 9.) The only new facts are that Roy Biondi transferred his interest into his revocable trust as well as the details and timing of communications between Trustees and Third-Party Defendants.[3] (Davis Decl. ¶ 11.) The court is not persuaded that these are new facts instead of more concisely articulated existing facts. Even so, since the new causes of action advanced by the proposed Third Amended TPC “arise[] from the same basic facts” as those originally plead, rather than “facts which give rise to a wholly distinct and different legal obligation against the defendant,” the court has the power to permit the amendment. (Herrera v. Superior Court (1984) 158 Cal.App.3d 255, 259.) As such, there Defendants Peter, Aptco, and Anna-Marie are not likely prejudiced by allowing the amendment. The remaining arguments as to sham pleading and statute of limitations are discussed with the pending Demurrer. (See Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760 [allowing an amendment that can be tested at demurrer.])

[4] As noted in the parties’ stipulation, these arguments are from the briefing from October 2023. There is no pending motion to strike.

[5] Along those lines, the Trustees argue that the delayed discovery rule applies to them even if they had all of the information available to conduct an investigation. Indeed, the Trustees argue that the public records on which Moving Defendants rely show that Ossi and Anna Marie Pierotti granted certain optionees the option to purchase the Property, not notice of $37 million fraud. (Opp. 7:16-20.)

[6] Moving Defendants also argue that the Trustees are estopped from making this argument anyway because they successfully asserted that Roy Biondi was a partner in their motion to intervene.

[7]The court acknowledges that the email requesting payment of taxes was from 2015. Nonetheless, the allegations must be read in conjunction with the allegation of continued payment of taxes for years after Biondi’s death and proof that payment was requested two years after Biondi’s death in 2013..

[8]The court recognizes that a confidential relationship may not rise to the level of a fiduciary relationship but that is a question to be resolved at a later stage when sufficiency of proof can be challenged, not today at the pleading stage, where the only issue is the sufficiency of the allegations.

[9] As with the fraud causes of action, the analysis for the sixth cause of action also applies to the Seventh and Eighth Causes of Action for Conspiracy to Breach Fiduciary Duties and Aiding & Abetting Breach of Fiduciary Duties.

[10] Moving Defendants demurrer to the Third, Fourth, and Fifth Causes of Action for failure to sufficiently plead reliance, too. The court adopts its analysis under the Second Cause of Action to these causes of action.