DENNIS DeMILLE v. JEFFREY GILBERT

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Court of Appeal, Second District, California.

DENNIS DeMILLE, Plaintiff and Appellant, v. JEFFREY S. GILBERT, Defendant and Respondent.

B212237

Decided: February 24, 2010

Law Offices of Mark J. Werksman and Mark M. Hathaway for Plaintiff and Appellant. Nemecek & Cole, Frank W. Nemecek, Mark Schaeffer and Joe Gluzman for Defendant and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Dennis DeMille (Dennis) appeals the dismissal of his action against Jeffrey S. Gilbert (Gilbert) after the trial court found the action time-barred and sustained a demurrer without leave to amend.

We find no error and affirm.

FACTS

Dennis filed a third amended complaint on behalf of the Estate of David E. DeMille (estate) and sued Gilbert for conversion, breach of fiduciary duty, elder abuse and negligence.   Allegedly, Gilbert helped Jerry DeMille convert part of the estate's $10.2 million to their own use.

Gilbert filed a demurrer and argued:  Dennis's third amended complaint was barred by the applicable statute of limitations.   In previous pleadings, Dennis sued as the successor in interest to David E. DeMille.   The third amended complaint, filed in 2008, was brought on behalf of the estate, a new plaintiff, and therefore did not relate back to the filing of the original pleading.

The trial court ruled as follows:  “The ․ demurrer is sustained without leave to amend because on its face it reveals it is barred by the statute of limitations.  [¶] The relation back doctrine does not save the complaint because it is being brought by a different plaintiff, the administrator of the estate as opposed to the successor in interest of the estate.   It may be the same individual, but he is a different legal entity and thus not entitled to the relation back doctrine.”

The action was dismissed.

This timely appeal followed.

DISCUSSION

I. Standard of Review.

When a demurrer is sustained, we assume the truth of the allegations, give the complaint a reasonable interpretation, and independently determine whether it states sufficient facts to constitute a cause of action.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)   If a trial court denies leave to amend, we review that denial for an abuse of discretion.  (Ibid.)

II. The law.

An amended pleading relates back to the original complaint and avoids the statute of limitations if it rests on the same general set of facts as the original complaint, and if it refers to the same injuries.  (Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 151.)  “The policy behind statutes of limitations is to put defendants on notice of the need to defend against a claim in time to prepare a fair defense on the merits.   This policy is satisfied when recovery under an amended complaint is sought on the same basic set of facts as the original pleading.  [Citation.]”  (Garrison v. Board of Directors (1995) 36 Cal.App.4th 1670, 1678.)

III. Waiver.

Dennis argues that the third amended complaint relates back to the original complaint because they rest on the same claim.   But Dennis's opening brief fails to provide any record citations to either pleading, so his argument is unsupported and he has forfeited his contention.  (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [“As a general rule, ‘The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment’ ”].)   To the extent Dennis attempts to ameliorate this deficiency in his reply brief, his attempt is unavailing.   Fairness militates against our consideration of tardy analysis.   (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11.)

DISPOSITION

The judgment is affirmed.

Gilbert is entitled to his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN-GERST

We concur:

_, P.J. BOREN _, J. DOI TODD

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