Pearson v. Say

Filed 8/28/08 Pearson v. Say CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael R. Hoff, Judge. Reversed and remanded.

Law Offices of Richard A. DeSantis, Richard A. DeSantis, and Stephen W. Holohan for Plaintiff and Appellant.

Chapman, Glucksman & Dean, Randall J. Dean, Stephanie Sessions Perkins, and Karen D. Morse for Defendant and Respondent.

Plaintiff Joyce Pearson appeals from the judgment of dismissal entered following the sustaining of defendant Richard Says demurrer without leave to amend. Pearson contends that because she is capable of amending the complaint to state a valid claim against Say, she should be granted leave to amend. We agree, and reverse and remand with directions.

BACKGROUND

I. The General Allegations of the Complaint

In this section, we will discuss only some of the relevant facts alleged in the operative pleading, the second amended complaint (SAC). Although the SAC alleges a complicated and lengthy series of fraudulent transactions, the following discussion is sufficient for purposes of this appeal.

Pearson filed this action as trustee of several trusts created by Lynn Simay for the benefit of Lynns children, Marc Simay and Michele Simay Maynard.[1] Lynn, who died in January 2000, devised substantial assets in her estate to the trusts, to be divided equally between Marc, who died in March 2005, and Michele. Pearson initiated this action after uncovering an alleged conspiracy led by Marc, as executor of Lynns estate, to divert and misappropriate assets in Lynns estate for his personal benefit, in breach of his fiduciary duty to the trusts, the trustees, and Michele. According to the complaint, Michele was seriously ill and unable to manage her own affairs during much of the period in question.[2]

In addition to suing Marcs estate, Pearson sued Marcs alleged coconspirators: (1) defendant Gary Schwartz, an attorney purporting to be the trustee of Micheles trust and Micheles attorney,[3]persuaded Michele to transfer her home to her trust, which allowed Marc to swindle Michele out of her home, as will be explained below; (2) defendant Jeffrey Susa, Marcs business associate, who misappropriated Micheles assets by purporting to be the trustee of Micheles trust; (3) defendant Richard Yukes, Marcs executor, who wrongfully seized control of the trust bank accounts after Marcs death, claiming to be president of the Simay Company, Inc., and trustee of the SFT;[4]and (4) defendant Marilee Tully, Marcs assistant, who wrongfully withheld over $1 million in trust payments from Michele.[5]

Of relevance to this appeal, Pearson also sued defendant Richard Say, the sole respondent on appeal. Say, a certified public accountant, was originally engaged by Lynn to provide tax and financial planning advice to the trusts, the trustees, various Simay family businesses, as well as to Lynn, Marc, Michele, and, more recently, Yukes, Tully, and Susa. During the relevant periods mentioned in the SAC, Say allegedly provided financial and tax advice and prepared tax returns for the trusts, the trustees, Lynn, Marc, Michele, and the general partners of the SFLP, with the intention of aiding and abetting Marc and his coconspirators to hide their allegedly fraudulent transfers and misappropriations of trust assets. Pearson contends that although Say knew that Marc, Schwartz, Susa, and Yukes were not the true trustees of the trusts, Say knowingly assisted them to misappropriate trust assets to the detriment of Says other clients, Michele and the true trustees. Pearson alleges that after Marcs death in 2005, Say continued to assist the remaining coconspirators, including Yukes, Susa, and Tully, through the date of the filing of the First Amended Complaint.

The numerous assets that the other defendants allegedly fraudulently diverted to Marc or his trust, to the detriment of Michele and her trust, included millions of dollars of income from the Coury-Simay Limited Partnership, Lennox Center, Oak Park Shopping Center, Bristol Place, and control of several Simay family businesses (the Simay Co., Inc., the Simay Co., and the SFLP). Following Lynns death, Schwartz allegedly assisted Marc to hide the assets in Lynns estate from the probate court by signing, as a purported trustee, a waiver of the accounting required under the Probate Code. Marc then allegedly sold the assets that were misappropriated from Lynns estate and took generous commissions that he did not share with Michele or the trusts.

Additionally, Marc, Schwartz, and Susa allegedly swindled Michele out of her own home. Schwartz, purporting to be Micheles attorney and trustee, urged Michele to sign a grant deed that transferred her home to Micheles trust. Relying on Schwartzs legal advice and Says tax advice, Michele signed the grant deed. This enabled Susa, also purporting to act as trustee of Micheles trust, to fraudulently sell Micheles house to Marc. Marc, also purporting to act as trustee of Micheles trust, fraudulently diverted the proceeds from the sale of Micheles house to his own trust and one of the family businesses in his (now disputed) control. Marc then extracted the equity from Micheles home by refinancing her mortgage at double the existing loan amount and retained the excess loan proceeds for his own use. Marc used Micheles trust funds to pay for the expenses of Micheles house, including the mortgage and taxes, without informing Michele that her trust no longer owned the residence where she lives with her children. Allegedly, Michele had no notice of the removal of her trust money until 2005.[6]

II. The Allegations Against Say

A. The Original Complaint

The original complaint, filed on March 24, 2006, contained six causes of action for: (1) breach of fiduciary duty; (2) fraudulent concealment; (3) fraudulent concealment; (4) breach of fiduciary duty; (5) fraudulent concealment; and (6) conspiracy. Say was named as a defendant in the second and fifth causes of action for fraudulent concealment and the sixth cause of action for conspiracy.

As set forth in the complaints introductory paragraphs, the gist of Pearsons theory of liability against Say was that Say had knowingly assisted Marc and the other defendants in their conspiracy to defraud Michele and the trusts of their rightful share of Lynns estate by filing false tax returns pursuant to Marcs instructions. According to the introductory paragraphs, which were incorporated into each cause of action against Say, Say had prepared three false tax returns in furtherance of the conspiracy: (1) Lynns 1997 gift tax return, which falsely listed the transfer of numerous assets from Lynns estate to Marcs and Micheles trusts, which were never approved by Lynn; (2) Lynns 1999 income tax return, which, in order to reduce Lynns potential estate taxes, falsely stated a series of alleged sales of Lynns assets that never took place; and (3) Micheles income tax return, which was prepared [i]n or about 2004, that purported to show a sale of the residence owned by Michele Maynard to Marc Simay that was accomplished without Micheles knowledge. Each of the causes of action against Say alleged (by incorporating paragraph 65) that Say had prepared Micheles false 2003 income tax return, knowing that the transaction between Michele Maynard in transferring her Gladehollow residence to her Trust and the subsequent resale of the property signed by Jeff Susa over to Marc Simay was in fact a fraud and was not a legitimate transaction. The creation of this tax return, Petitioner is informed and believes and thereon alleges was an effort to bolster the claim that Marc Simay owned the residence in which Michele Maynard was living . . . .

In the sixth cause of action for ongoing conspiracy, which incorporated the allegations of the entire complaint, Pearson alleged that Say had joined in the ongoing conspiracy by Marc, Yukes, Tully, Susa, Simay, and the various family business entities to defraud Michele Maynard out [of] her inheritance from her mother Lynn Simay as alleged in the First, Second, Third, Fourth, and Fifth Causes of Action. The sixth cause of action alleged that the conspiracy continued up to and beyond J[an]uary 2006.

B. The First Amended Complaint (FAC)

On May 22, 2006, Pearson filed a FAC that contained additional fact allegations and seven causes of action for: (1) breach of fiduciary duty; (2) fraud; (3) conspiracy to defraud; (4) conversion; (5) fraud; (6) equitable relief re spo[li]ation and secreting evidence; and (7) equitable relief re corporate usurpation of authority.

Like the original complaint, the FAC continued to allege that Say, in furtherance of the conspiracy by Marc and the other defendants to defraud Michele and her trust of their rightful share of Lynns estate, had prepared the false 1997, 1999, and 2003 tax returns as previously described. Pearson named Say as a defendant in the first cause of action for breach of fiduciary duty and fraud, and the fifth cause of action for fraud. However, Say was no longer named as a defendant in the third cause of action for conspiracy to defraud.

C. Says Demurrer to the FAC

Say demurred to the FAC on the ground that it failed to state facts sufficient to constitute any cause of action against him and was fatally uncertain in that the allegations were vague, ambiguous, and unintelligible. In particular, Say argued that Pearson had failed to state a claim against him as a coconspirator, claiming the FAC was devoid of allegations that: (1) Say actually knew of the plan/acts of others designed to defraud plaintiff; (2) Say agreed to assist in a scheme by the defendants to defraud plaintiff; (3) Say knew or should have known in 1997 when he prepared the 1996 estate and gift tax return recording gifts by Lynn that such return was false in that no gift was given; (4) Say knew or should have known that income tax returns he prepared were false; (5) Say knew when he gave Plaintiff only limited documents from his files pending authorization from the interested clients for release of the remainder of his files to Plaintiff that this was somehow improper; and (6) Say engaged in each of these acts in furtherance of the conspiracy.

In addition, Say argued that the fraud claims were insufficient because the FAC fails to allege any of the factual elements of fraudthere are no allegations of a misrepresentation, any intent to induce reliance, and any actual, justifiable reliance on Says alleged misrepresentations. There are no allegations that Say knew the Estate and Gift Tax Return or any other work performed by him was incorrect or false, no allegations of any intent by Say to defraud Plaintiff, Michele or others to induce their reliance, no allegations that Plaintiff, Michele or others justifiably and reasonably relied on misrepresentations made by Say, or any allegations Plaintiff or others have been . . . damaged as a direct result of Says allegedly fraudulent preparation of the subject tax returns or any other representation by him. Regarding the allegations that Say had fraudulently prepared Micheles 2003 tax return to reflect a fraudulent sale of her residence to Marc, Say argued that the allegations were insufficient to allege that he was aware that the sale was fraudulent. The pleading was insufficient, Say asserted, because it failed to plead specific facts that show how, when, where, to whom, and by what means the representations were tendered. [Citation.]

In opposition to Says demurrer to the FAC, Pearson argued that the allegations were sufficient to state a cause of action for fraud based on Says filings of intentionally false 1997, 1999, and 2003 tax returns. Arguing that Say was liable for fraud as a coconspirator, Pearson cited paragraph 93 of the FAC, which alleged that upon the death of Lynn Simay, Say engaged and continued to engage in such activities in combination with Marc Simay, and others, and that the fabricated tax returns together with advice given by Say to Marc Simay, and others, constituted joinder in the agreed conspiracy to defraud the Michele Maynard Trust and Michele Maynard individually in an amount more than $500,000.00 Pearson argued that these general allegations of the conspiracy agreement are sufficient to state a claim against Say under Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.

The trial court sustained Says demurrer to the FAC with leave to amend.

D. The Second Amended Complaint (SAC)

On October 16, 2006, Pearson filed the SAC, which contained nine causes of action for (1) breach of fiduciary duty and fraud, (2) breach of fiduciary duty (fraud), (3) breach of fiduciary duty and conspiracy to defraud, (4) conversion, (5) [deleted], (6) spoliation, (7) corporation usurpation of authority conversion (request for temporary receiver); (8) breach of fiduciary duty and negligence, and (9) breach of fiduciary duty, constructive fraud and negligence. In the SAC, Pearson named Say as a defendant in only two causes of action, breach of fiduciary duty and fraud (first cause of action) and breach of fiduciary duty and negligence (eighth cause of action).

The SAC alleges that Say knew of the fraudulent acts conducted by Marc and the other defendants and owed a fiduciary duty to warn his clients (the true trustees and Michele) of their misdeeds. But instead of warning his clients, Say, in direct breach of his fiduciary duty to Michele and the trusts, filed false tax returns that intentionally covered up the allegedly fraudulent transfers.[7] Also, Say directly breached his fiduciary duty to Michele and the trusts by failing to explain the adverse consequences that will result from the allegedly false tax returns and failing to disclose his conflict of interest arising from his participation in the conspiracy to defraud Michele and the trusts.[8]

In addition to alleging a direct breach by Say of his fiduciary duty to Michele and the true trustees, the SAC alleges that Say aided and abetted Marc and Schwartz in breaching their fiduciary duties to Michele and the true trustees. The SAC alleges the existence of a fiduciary relationship between Michele and the true trustees, on the one hand, and, on the other hand, Marc, as executor of Lynns estate, and Schwartz, as the purported attorney for Michele and purported trustee of her trust. The SAC states that by aiding and abetting Marc and Schwartz in breaching their fiduciary duties, Say became jointly liable for their intentional torts, which constitute constructive fraud.

E. Says Demurrerto the SAC

The SACs first cause of action for breach of fiduciary duty and fraud is not presently at issue on appeal, having been voluntarily dismissed by Pearson (but only as to Say) at the hearing below. Although the trial court nevertheless sustained Says demurrer to the SACs first cause of action without leave to amend, Pearson does not challenge that aspect of the ruling on appeal.

Accordingly, the only cause of action before us on appeal is the SACs eighth cause of action against Say for breach of fiduciary duty and negligence. But because the eighth cause of action incorporated the first 53 paragraphs of the complaint, including the first cause of action for breach of fiduciary duty and fraud, the allegations of the first cause of action remain relevant to our review of the sufficiency of the eighth cause of action.

Say demurred to the eighth cause of action on the ground that it failed to state facts sufficient to constitute a claim. Say argued below that the eighth cause of action: (1) is barred by the applicable statute of limitations; (2) fails to allege a negligent act, the existence of a fiduciary duty, any breach thereof, or any resulting damages; (3) is fatally uncertain, in that it is vague, ambiguous, and unintelligible as to what fiduciary duties were owed by whom and to whom, the alleged breaches thereof, and any resulting damages; and (4) is unclear as to which tort (breach of fiduciary duty, negligence, or a combination thereof) the plaintiff is attempting to allege. Say further contended below that Pearson is not a real party in interest and, therefore, lacks standing to sue on behalf of the SFLP, one of the family businesses allegedly seized by Marc through fraudulent means after Lynns death.

In opposition to the demurrer, Pearson argued in part that the SAC states a valid claim against Say, both as a coconspirator and aider and abettor in the intentional torts of others. Pearson cited Quelimane Co. v. Stewart Title Guaranty Co., supra, 19 Cal.4th 26, 47, for the proposition that [t]o render defendant liable for wrongs committed by another, the complaint must allege (1) defendant had knowledge of and agreed to both the objective and course of action to injure the plaintiff; (2) the wrongful act pursuant to such agreement; and (3) resulting damage to plaintiff. Pearson argued, Plaintiff has pleaded: (1) defendant had knowledge of and agreed to both the objective and course of action to injure the plaintiff [SAC, 126]; (2) the wrongful acts pursuant to such agreement [SAC, 110, 111, 112, 115, 117, 118, 119, 120, 121, 122, 124, 125, 126, 127]; and (3) resulting damage to plaintiff [SAC, 129]. [] Plaintiff has also alleged causes of action for collusion [SAC 128] which is of aiding and abetting. Liability may be imposed on one who aids and abets the commission of an intentional tort if the person knows the others conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to act. Casey v. U.S. Bank National Association, 127 Cal.App.4th 1138, 1144, 26 Cal.Rptr.3d 401 (App.4Dist. 2005). The Casey court stated at 127 Cal.App.4th at 1148: The court noted that it is sufficient for a pleading to allege generally that defendant had actual knowledge of a specific primary violation. [Citation omitted.]

Pearson argued below that justifiable reliance was not a necessary element of her claims against Say. Although Pearson acknowledged that justifiable reliance is required to establish a claim for actual fraud, she argued that justifiable reliance is not required to establish a claim for constructive fraud under Civil Code section 1573, which provides: Constructive fraud consists: [] 1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or, [] 2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud. Pearson contended below that by pleading a claim for breach of fiduciary duty against Say, she had alleged a claim for constructive fraud under Civil Code section 1573 for which justifiable reliance was not necessary.

Pearson further argued below that her claims against Say were not untimely because the statute of limitations is tolled until the last overt act of the conspiracy, citing Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773. Pearson stated that [t]he ongoing acts included the improper allocations knowingly made by Say of the Coury-Simay, Echo Park, Cosim, and FOP Inc. assets among others and failure to comply with the distribution provisions of the Simay Family Trust. These acts continued through at least to October 15, 2006. [alleged in SAC 125(i)] See Exhibit 3 attached to Opposition to Motion to Strike relating to withdrawal of Lucove Say & Co[.], and Exhibits 1 and 2 excerpt tax returns prepared for the year 2005 restating the errors.

F. The Order Sustaining the Demurrer to the SAC Without Leave to Amend

The trial court sustained, without leave to amend, Says demurrer to the eighth cause of action for breach of fiduciary duty and negligence, on the ground that the claim was barred by the two-year limitations period of Code of Civil Procedure section 339, subdivision 1, for accountant malpractice. Viewing the claim as one based solely on a theory of direct negligence, rather than an indirect theory of conspiracy or aiding and abetting the intentional torts of others, the trial court concluded that because the disputed tax returns were prepared between 2000 and 2004, Pearson, with the exercise of reasonable diligence, should have discovered the alleged wrongs in 2001 or 2002, or well before the SAC was filed in 2006.[9] In response to Pearsons assertion that Say had not provided her with the relevant financial records and tax returns, the trial court noted that the complaint failed to allege that the documents were not equally available to the plaintiff.

The trial court further stated that although the eighth cause of action was titled breach of fiduciary duty and negligence, it was actually a claim for fraud and conspiracy, but that the allegations were insufficient to support a claim under either theory. The trial court stated that although fraud is technically no longer a cause of action in this case, at least against this defendant, it bears mentioning since the eighth cause of action is fil[l]ed with fraud-type allegations. However, the plaintiff fails to allege or to point to anything in the second amended complaint thats remotely specific. Therefore, there is no proper allegation of any fraudulent activities on the defendants part. . . . It is similar with respect to the conspiracy allegations. Theres no specificity and no direct allegations against this defendant. As such, the eighth cause of action for breach of fiduciary duty and negligence is sustained without leave to amend.

With regard to standing, the trial court rejected Says contention that Pearson lacks standing to sue on behalf of the SFLP. The trial court stated that according to the allegations of the SAC, Pearson is a general partner of the SFLP.

DISCUSSION

I. Standard of Review

In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] 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.] And when it is sustained without leave to amend, we 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. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) To meet [the] burden of showing abuse of discretion, the plaintiff must show how the complaint can be amended to state a cause of action. [Citation.] However, such a showing need not be made in the trial court so long as it is made to the reviewing court. (William S. Hart Union High School Dist. v. Regional Planning Com. (1991) 226 Cal.App.3d 1612, 1621.) [W]e may affirm a trial court judgment on any basis presented by the record whether or not relied upon by the trial court. (Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 252, fn. 1.) (Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 999.)

II. Aiding and Abetting and Conspiracy Theories of Liability

In sustaining the demurrer to the SAC without leave to amend, the trial court concluded that the allegations were neither sufficiently specific nor direct to state a conspiracy-based theory of liability against Say.

Pearson argues on appeal that [t]he essence of the claims [that] Say breached his fiduciary duty and committed negligence i[s] that he aided and abetted Marc and Gary Schwartz, an attorney[,] in their efforts to wrest assets from Lynns estate, which she intended one half was to ultimately go to the [Michele] Maynard Trust for the benefit of Michele and her children (Italics added.) Pearson contends that she is capable of amending the SAC to allege that Say had conspired and participated with Schwartz and Marc in a plan . . . to take control of, and title to millions of dollars worth of [trust] assets, and also tremendous incomesome of which was shared with his friends.

Say responds that although the SAC does not assert a cause of action for conspiracy, Pearson summarily asserts conspiracy by alleging that Respondent Say later joined the conspiracy of other defendants in his tax return preparation in order to fit the plans developed by other defendants. [Citation.] As set forth in Says demurrers to the SAC, Pearson cannot maintain a cause of action for conspiracy against Say given that the SAC is devoid of any of the necessary elements to support the same: (1) the formation and operation of the conspiracy; (2) an act done in furtherance of the conspiracy[;] and (3) resulting damage. Applied Equip. Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511 [record citation omitted]. Accordingly, the trial courts decision to sustain the demurrer, without leave, was clearly proper. Say further asserts that Pearson does not address this defect and therefore, has not met her burden of proof.

In the reply brief, however, Pearson further argues that she is capable of amending the SAC to state a valid claim that Say was much more than a tax preparer[,] but rather a party to an effort to reduce the interest of Michele Simay Maynard in her mothers estate. [] Say knew and participated in the scheme and in so doing, negligently prepared documents to support the claim that Ms. Maynard should not receive the interest to which she was and is entitled. Citing to the SAC, Pearson further states, Moreover Appellant has alleged by factual allegations that Say participated in the removal of major assets from the SFT, which resulted in severe damages to the Appellant, e.g., the loss of the SFTs interest in the Simay Company, Inc. (Simay Company) [record citation omitted] valued at over 9 million dollars; and the knowing participation in the removal of the asset known as Coury-Simay from the SFT trust ownership. [Record citation omitted.] In addition, Pearson argues that Says challenge is not based on defects that are on the face of the SAC, but rather respondents own claims. Their statements extrinsic to the pleadings are somehow to be deemed facts, according to respondents, but in matters of demurrers, should not be considered. It is error to consider statements in memoranda or briefs supporting a demurrer. Ion Equip. Corp. v. Nelson (1980) 110 CA 3d. 868, 881.

Liability based on a theory of aiding and abetting is closely related to liability based on a theory of civil conspiracy. (Richard B. LeVine, Inc.v. Higashi (2005) 131 Cal.App.4th 566, 574 (LeVine).) The unifying principle under either theory of recovery, civil conspiracy or aiding and abetting, is that [the defendants] liability depends upon the actual commission of a tort. (Ibid.) Both theories are derivative [in that] liability is imposed on one person for the direct acts of another. Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. [Citation.] By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511, italics added.) Similarly, aiding and abetting liability may be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the others conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the persons own conduct, separately considered, constitutes a breach of duty to the third person. (Fiol v. Doellstedt [(1996)] 50 Cal.App.4th [1318,] 1325-1326, italics added.) (LeVine, supra, 131 Cal.App.4th at p. 579.)

In LeVine, as in this case, the defendant was sued for aiding and abetting in the commission by others of an underlying tort, an alleged breach of fiduciary duty. (Ibid.) The appellate court in LeVine stated that [u]nless [the others are found to have] committed the underlying tort alleged here, i.e., breach of fiduciary duty, [the defendant] cannot be held liable either as a conspirator or as an aider and abettor. (131 Cal.App.4th at p. 575.) The same holds true in this case. If the other defendants (Marc, Schwartz, Susa, Yukes, and Tully) are found to have committed the underlying torts (such as breach of fiduciary duty, fraud, constructive fraud, and conversion), we conclude that under LeVine,Say may be held liable as a conspirator or aider and abettor if he: (a) knew that their conduct constituted a breach of duty and gave them substantial assistance or encouragement to so act, or (b) gave them substantial assistance in accomplishing a tortious result and his own conduct, separately considered, constituted a breach of his duty to Michele and the true trustees.

According to the SAC, Say had knowledge of and agreed to both the objective and course of action of all of the wrongful action alleged in this Fifth[10]Cause of Action to injure plaintiff as Trustee of the SFT, general partner of the SFLP, and Trustee of the MMSIT, and to injure Michele Maynard as beneficiary of the SFT, MMSIT, and distribute[e] of the SFLP. [] . . . Defendant Say knew the conduct of Marc Simay alleged in this Fifth Cause of Action constituted a breach of fiduciary duty to the SFT and its trustee, the SFLP and its general partners, and the MMSIT and its trustees, and Defendant Say gave substantial assistance and encouragement to Marc . . . to so act.

In reviewing a demurrer, we must deem all properly pleaded material facts to be true. Accordingly, we must assume that the other defendants (Marc, Schwartz, Susa, Yukes, and Tully) engaged in a conspiracy to divert and misappropriate trust assets, in breach of their fiduciary duties owed to the trusts, the trustees, and Michele. It readily appears that Pearson is capable of amending the complaint to further allege that their conspiracy was aided by Say, who knowingly filed false tax returns to hide their alleged wrongdoings, in violation of his own professional duty to his clientsthe true trustees, and Michele.

Given that the demurrer was also sustained without leave to amend based on Says statute of limitations defense, we next consider whether it appears that Pearson is capable of amending the complaint to avoid this defense.

III. Statute of Limitations

The defense of statute of limitations may be asserted by general demurrer if the complaint shows on its face that the statute bars the action. (1 Schwing, Cal. Affirmative Defenses (2007) Statute of Limitations, 25:78, p. 1609, fns. omitted; see Bennett v. Hibernia Bank (1956) 47 Cal.2d 540, 550.) There is an important qualification, however: In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred. (McMahon v. Republic Van & Storage Co., Inc. (1963) 59 Cal.2d 871, 874; see also, e.g., Geneva Towers Ltd. Partnership v. City and County of San Francisco (2003) 29 Cal.4th 769, 781.) The ultimate question for review is whether the complaint showed on its face that the action was barred by a statute of limitations, for only then may a general demurrer be sustained and a judgment of dismissal be entered thereon. (Moseley v. Abrams (1985) 170 Cal.App.3d 355, 358.) (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315-1316.)

Say contends that the SACs eighth cause of action is untimely on its face because the two-year limitations period for accountant malpractice begins to run when (1) the plaintiff discovers or with reasonable diligence should have discovered the accountants alleged negligence and (2) the plaintiff suffers actual and appreciable harm as a result of the negligence. (Citing Schraderv. Scott (1992) 8 Cal.App.4th 1679, 1684.) In Says view, the last allegedly negligent act occurred when he prepared Micheles 2003 personal income tax return. Say argues that because Michele, the taxpayer, received a copy of her return when it was prepared, arguably any alleged negligence associated with the preparation of the tax return, was, or should have been discovered by either Michele or her trusteeAppellant Pearsonno later than 2006, clearly more than two years prior to the filing of the SAC, the first complaint to allege negligence against Say.

Say would have us measure the timeliness of the eighth cause of action based solely on the date that the SAC was filed, because that was the first complaint to allege a negligence claim, as opposed to a fraud or conspiracy claim, against Say. Pearson, on the other hand, argues that because the initial complaint was filed [on] March 24, 2006 and named Say and Lucove Say, the claims should relate back.

Even though the eighth cause of action is titled breach of fiduciary duty and negligence, the title of the cause of action is not the determining factor. If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. (Quelimane Co. v. Stewart Title Guaranty Co., supra,19 Cal.4th at p. 38.)

As stated in the SACs introductory paragraphs and Pearsons opening brief on appeal, the gist of Pearsons claim against Say is that he is liable, as either an aider and abettor or coconspirator, for the intentional torts of others. Given that Pearson alleged conspiracy and fraudulent concealment claims against Say in the original complaint, we agree with Pearson that her conspiracy and aiding and abetting claims should relate back to the earlier complaints. We therefore disagree with Says position that the timeliness of the eighth cause of action is measured by the date that the SAC was filed.

The general rule is that when a civil conspiracy is properly alleged and proved, the statute of limitations does not begin to run on any part of a plaintiffs claims until the last overt act pursuant to the conspiracy has been completed. (Schessler v. Keck (1954) 125 Cal.App.2d 827, 832-833.) (Wyatt v. Union Mortgage Co., supra, 24 Cal.3d at p. 786.) Pearson contends that if she is granted leave to amend, she can allege that Michele signed her 2003 personal tax return on October 14, 2004. If we assume, for the sake of argument only, that this was the date of Says last overt act pursuant to the conspiracy, the complaint, which was filed on May 22, 2006, was timely filed within two years of that date. We therefore conclude that at this stage of the proceedings, Pearson has shown that she is capable of amending the complaint to avoid a statute of limitations defense.

IV. Standing

Say contends that Pearson lacks standing to sue on behalf of the SFLP because she is not the real party in interest. The complaints allegations, however, state that Pearson is a general partner of the family partnership. In addition, even assuming Pearson lacks standing to sue on behalf of the family partnership, Say has failed to show that she lacks standing to sue on behalf of the trusts. Accordingly, the contention lacks merit.

DISPOSITION

The judgment of dismissal is reversed. The order sustaining the demurrer without leave to amend is vacated and the cause remanded with directions to enter a new order

sustaining the demurrer with leave to amend. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.

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[1] For the sake of convenience and clarity, we will refer to the three Simay family members by their first names, with no disrespect intended.

With regard to the creation of the trusts, the SAC alleges the following. In 1987, Lynn created the Simay Family Trust (SFT) and divided its assets equally between Marc and Michele. In 1996, Lynn created the Lynn Simay 1996 Irrevocable Trust (SIT) and also divided its assets equally between Marc and Michele. Lynn established individual trusts under the SIT for Marc (the Marc Simay Trust under the Lynn Simay 1996 Irrevocable Trust) and Michele (the Michele Maynard Trust under the Lynn Simay 1996 Irrevocable Trust [MMSIT or the Michele Maynard Trust]). In 1998, Lynn amended the SFT provisions to state that half of the trust assets were to be held by the SFT for the benefit of Michele.

Pearson brought this action as trustee of the MMSIT, trustee of the SFT, and general partner of the Simay Family Limited Partnership (SFLP). The SFLP is one of several family businesses established by Lynn, the ownership of which is disputed.

[2] The SAC alleges that [i]n the spring of 2000, Michele Maynard became seriously ill and was hospitalized for an extended period of time. Ms. Maynard was unable to handle her affairs and to maintain herself, and required chemotherapy for her condition. Marc Simay, knowing of her condition and despite the fact that Michele was entitled to substantial funds available from the Estate of Lynn Simay, refused to permit transfer of part of her inheritance funds to Michele Maynard to pay for her additional health costs, including the chemotherapy which Michele desperately needed. Marc had seized control of the Michele Maynard Trust bank account funds, which he held without any authority whatsoever. Therefore, Ms. Maynard remained in a serious condition until at least mid-2004, and was subject to intimidation from Marc.

[3] According to the SAC, From at least on or about June 2001, Gary Schwartz, Esq. who was representing the Simay Company, Inc. and who had named himself as a trustee for Michele Maynard Trust u/t Lynn Simay 1996 Irrevocable Trust also without any right or authority by Court order, or by Ms. Maynard. Schwartz took instructions from Marc Simay as to how to deal with Micheles portion of the assets of Lynn Simays estate. Schwartzs actions assumed a position of trust, and violated the fiduciary pillars applicable to such position. Plaintiff alleges that Schwartz has caused damage to the Michele Maynard Trust and Michele Maynard in an amount to be determined at trial. The SAC further alleges: Mr. Schwartz had assumed the position of Trustee of the Michele Maynard Trust also without any authority whatsoever. This was another act of breach of fiduciary duty. MMSIT and Ms. Maynard have been damaged by activities of Mr. Schwartz in a sum according to proof.

The SAC also alleges that in July 2005, Schwartz resigned as trustee of the SFT upon the request of Pearson, who had been designated by Michele Simay Maynard as her trustee as well as her designated trustee for the Simay Family Trust.

[4] According to the SAC, Yukes claims to be President of the Simay Company, Inc., and claims to be a co-trustee of the Simay Family Trust. After Marcs death in March 2005, Yukes petitioned the probate court as Marcs special administrator to obtain control of all the bank accounts related to the Marc Simay interests and in that connection claimed that he needed authority over the bank accounts of the Michele Maynard Trust and the Simay Family Trust at the City National Bank at the Sherman Oaks, California branch. Mr. Yukes knew at the time that all of that was totally untrue [] and that he had no right to seize Ms. Maynards assets including her bank accounts or the trust bank accounts, and that Yukes had no right to assume that Yukes had any privilege over the Simay Family Trust. He did so nevertheless with the knowledge of account numbers and the relationships Ms. Tully had formed with the bank personnel and in concert with Ms. Tully. This series of efforts was part of a chain of activities which continues to this day as a conspiracy to defraud Ms. Maynard of her rightful inheritance. Ms. Maynard has been damaged in an amount to be determined according to proof at trial, but estimated in the millions of dollars.

[5] According to the SAC, the annual income to be paid to the Michele Maynard Trust from the SFT and SIT was not distributed as required by the SFT to Ms. Maynard. Rather under the auspices of Ms. Tully, and Mr. Yukes, and with the consent and aid of Jeffrey Susa, very limited funds were provided to Ms. Maynard. Not only that, but Ms. Tully refused to distribute the funds to the Michele Maynard Trust required by the SFT and deliberately refused to disclose to the Plaintiff, despite numerous discovery requests, the amount of undistributed funds being held byMarilee Tully which should be held by the Simay Family Trust or to which the Michele Maynard Trust was entitled to receive from the Simay Family Trust and/or any affiliated trust or partnerships. Ms. Tully, who has no legal right or authority respecting the income, or assets of the SFT or SFLP or the MMSIT has simply intruded into management of these entities and seized control of the assets with the aid and encouragement of Richard Yukes, Jeffrey Susa, and earlier Marc Simay. The SAC further alleges that in December 2005, after being deposed in this action, Tully delivered $200,000 to Michele, having been forced to admit that such sum was due and payable to the Michele Maynard Trust on May 5, 2005. The SAC lists additional payments in excess of $1 million that have been wrongfully withheld from Michele, which were not discovered by Pearson until after December 2005.

[6] As previously mentioned, Michele was allegedly seriously ill during this time. According to the SAC, Ms. Maynard from the year 2000, and until late 2004 was debilitated by serious illness from which she could not clearly understand and relate to her assets, liabilities and interests. Almost all of the persons who claimed to be Trustees of the MMSIT, Marc Simay, Jeffrey Susa, Gary Schwartz and doe 26 made no effort to protect the financial or physical interests of Michele Maynard or the financial interests of the MMSIT. As a result thereof the MMSIT has suffered damages . . . .

[7] For example, with regard to Micheles house, the SAC alleges that Marc got Say and Schwartz to encourage Michele to transfer her house to her trust, so that Marc could then use Jeffrey Susa to cause the house to be transferred to himselfand vacuum the equity from it to use. [] . . . Plaintiff alleges that Say was aware of these plans and agreed with Marc to prepare tax returns for Michele which would support an alleged legitimate sale of her house to Marc, and made no reference of a transfer to the trust; and Say did not explain the tax return, or the effect of that transaction to Ms. Maynard.

[8] The SAC alleges that Michele Maynard and the trustees of the MMSIT relied on the financial advice, tax planning and on defendants Say and Lucove Says advice as to the manner of handling the assets in her name and in her trust. For example Say advised Michele Maynard to transfer her house to her trustwithout explaining to Ms. Maynard the detriment she would suffer as a result. The claimed trustee of the MMSIT at that time was Gary Schwartz. Michele Maynard relied upon Says advice because Say represented that he had expertise in such matters of trust, and asset protection, and Ms. Maynard further relied on Says advice because of a long term relationship between Say and the Simay family and their trusts andgeneral and limited partnership of which Say was a co-architect. Say worked closely with Schwartz, who was not legally trustee of the MMSIT, on this transaction. Say knew that Schwartz was not trustee. In addition from the year 2000 until late 2004 Ms. Maynard was debilitated by serious illness so that she could not clearly understand and relate to her assets, liabilities and interests, a fact known to Say and Schwartz. Say for all of the above[] reasons therefore owed a fiduciary duty to Michele Maynard, and to the MMSIT and its legitimate trustee, Ian Hart, and the beneficiary Michele Maynard.

[9] At the hearing below, Pearsons attorney argued, as stated in the written opposition to the demurrer, that because Say was being sued under a theory of aiding and abetting the intentional torts of others, the statute of limitations did not commence to run while acts in furtherance of the conspiracy were being committed. Counsel stated: We have contended in our allegations that Mr. Say was an aider and abettor with respect to certain acts of the other defendants in the action. And we believe that under the law, so long as the person continues to commit wrongful acts in furtherance of a conspiracy to harm another, he can claim unfair prejudice in filing of claim for disturbance of any justifiable repose built upon the passage of time. That case is the case of Wyatt versus Union Mortgage Company, also cited in the brief.

[10] We assume, given that the fifth cause of action was deleted from the SAC, that the reference to the fifth cause of action was a typographical error that can be corrected in an amended complaint.