Filed 8/24/26 Morrison v. Kimball, Tirey & St. John CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JO ELLEN MORRISON, Individually D085585
and as Trustee, etc.,
Plaintiff and Appellant,
(Super. Ct. No. 37-2021-
v. 00042690-CU-PN-CTL)
KIMBALL, TIREY & ST. JOHN,
Defendant and Respondent.
APPEAL from an order of dismissal of the Superior Court of San Diego
County, Gregory W. Pollack, Judge. Affirmed.
Salisbury Group, Inc. and Lisa G. Salisbury for Plaintiff and Appellant.
Solomon Ward Seidenwurm & Smith, Thomas F. Landers, Mei-Ying
Imanaka, and Owen M. Praskievicz for Defendant and Respondent.
Jo Ellen Morrison, individually and as trustee of her brother’s trust,
filed a third amended complaint alleging professional negligence and breach
of fiduciary duty against her estate planning attorney, Lori Bolander;
Bolander’s original firm, Kimball, Tirey & St. John, LLP (KTS); and
Bolander’s later firm, Gallagher, Bolander, Smedley, LLP (GBS). The trial
court sustained without leave to amend KTS’s demurrer on the ground the
claims were time-barred under Code of Civil Procedure section 340.6.
Jo Ellen contends the trial court erred in sustaining the demurrer
because the third amended complaint adequately alleged facts establishing
that the discovery rule delayed onset of the one-year statute of limitations.
She further argues the court abused its discretion in sustaining the demurrer
without leave to amend.
We conclude the third amended complaint does not allege facts
demonstrating Jo Ellen’s claim accrued within the limitations period. The
court therefore did not err in sustaining the demurrer. Because Jo Ellen did
not provide authority or argument supporting leave to amend, we further
conclude she forfeited her contention that the court abused its discretion in
sustaining the demurrer without leave to amend. Accordingly, we affirm.
I.
On an appeal from a demurrer, we state the facts from the properly
pleaded allegations in the operative pleading, its attachments, and any
matters subject to judicial notice. (Jimenez v. Mrs. Gooch’s Natural Food
Markets, Inc. (2023) 95 Cal.App.5th 645, 653.)
In May 2017, Scott Morrison hired Bolander and KTS to get his affairs
in order following a cancer diagnosis. He subsequently signed and notarized
The J. Scott Morrison Trust dated February 23, 2018 (Trust) naming his
sister, Jo Ellen, as a trustee and the sole beneficiary; a power of attorney
appointing Jo Ellen; and a will designating Jo Ellen as the executor. He was
not married at the time.
While hospitalized in May 2018, Scott emailed Bolander, Bolander’s
law partner at KTS, Jo Ellen, and Donna Gibson. He explained Donna had
just accepted his marriage proposal and they intended to marry immediately.
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He asked Bolander to “adjust [his] Trust ASAP.” Bolander’s law partner
responded that Bolander was out of the office. Scott married Donna that
evening.
Four days later, Bolander emailed Scott to confirm he did not want to
change the Trust’s disposition. She said the amendment and codicil she
prepared “just acknowledge you are married, which will protect Jo [Ellen], as
Trustee and beneficiary.” There is no indication Scott responded.
Scott signed and notarized a first amendment to the Trust and a codicil
to the will the next month with the only changes being statements that he
had married Donna. Donna signed a spousal consent form waiving any
purported entitlement to spousal benefits in Scott’s 401(k) plan.
On July 12, Scott passed away.
Jo Ellen, on behalf of the Trust, and Donna made competing claims for
Scott’s 401(k) proceeds. On October 11, Donna’s counsel wrote to Bolander to
notify her that Donna would challenge the Trust unless the parties reached a
settlement.
Donna filed a petition challenging the Trust on November 15. The next
day, Jo Ellen and her mother signed a settlement agreement “allowing
[Donna] to receive over the maximum amount [Donna] could receive in a
lawsuit, if she had viable claims.” The settlement agreement stipulated that
Donna would dismiss the petition.
In February 2019, Bolander moved to GBS, and the new law firm took
over representing Jo Ellen and the Trust from KTS.
In June 2020, Donna filed a motion to enforce the settlement
agreement, claiming Jo Ellen should be responsible for an income tax bill
issued to Donna. On October 6, Jo Ellen retained new counsel to respond to
the motion.
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Jo Ellen filed her first complaint in the underlying lawsuit on
October 6, 2021, and amended it twice. The court sustained Bolander, KTS,
and GBS’s demurrers to the second amended complaint without leave to
amend as to all but the causes of action for professional negligence and
breach of fiduciary duty. The court also granted their motions for judgment
on the pleadings, but allowed Jo Ellen leave to amend “to more specifically
allege facts sufficient to satisfy her claim of delayed discovery.” “In addition
to alleging further facts supportive of her claim for tolling based on delayed
discovery, [the court suggested Jo Ellen might] also wish to allege further
facts in support of tolling based upon ‘no actual injury’ and/or ‘continuous
representation’ under [Code of Civil Procedure section] 340.6(a)(1) and (2).”
After Jo Ellen filed her third amended complaint, KTS demurred on the
ground the claims were time-barred under section 340.6.
The trial court sustained the demurrer, concluding several alleged facts
provided sufficient notice of counsel’s wrongdoing more than a year before
Jo Ellen filed the lawsuit. Specifically, the court found three facts precluded
assertion of the delayed discovery rule: (1) Jo Ellen learned Donna was
challenging the Trust in October 2018; (2) Jo Ellen signed a settlement
agreement with Donna in November 2018 providing a significant amount of
Scott’s assets to Donna; and (3) Donna filed a motion to enforce that
settlement agreement in June 2020, seeking an order that Jo Ellen be
responsible for payment of any income tax generated by Scott’s 401(k) plan
instead of Donna.
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II.
A.
Jo Ellen contends the trial court erred in finding the discovery rule did
not apply as a matter of law and sustaining the demurrer. We conclude the
court correctly sustained the demurrer.
A legal malpractice action must “be commenced within one year after
the plaintiff discovers, or through the use of reasonable diligence should have
discovered, the facts constituting the wrongful act or omission.” (§ 340.6(a).)
When it is apparent from the face of the complaint that a claim is barred by
the statute of limitations, a plaintiff relying on the delayed discovery rule
bears the burden of pleading facts showing “‘(1) the time and manner of
discovery and (2) the inability to have made earlier discovery despite
reasonable diligence.’” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th
797, 808.)
Ordinarily, whether the plaintiff belatedly discovered the cause of
action is a question of fact. (Baright v. Willis (1984) 151 Cal.App.3d 303,
311.) But if reasonable minds can draw only one conclusion from the facts,
the question may be decided as a matter of law. (Ibid.)
As relevant here, the limitations period is also tolled if “[t]he plaintiff
has not sustained actual injury.” (§ 340.6(a)(1).) Actual injury is a “loss or
diminution of a right or remedy” that is legally cognizable as damages
sufficient to plead a legal malpractice claim. (Jordache Enterprises, Inc. v.
Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 743-744, 749.)
“In reviewing an order sustaining a demurrer, we examine the
operative complaint de novo to determine whether it alleges facts sufficient to
state a cause of action under any legal theory.” (T.H. v. Novartis
Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.)
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Jo Ellen acknowledges (1) she filed the complaint more than one year
beyond when the third amended complaint alleged KTS committed
malpractice and (2) KTS ceased representing her in February 2019.
Accordingly, she admits her action against KTS is timely only with
application of the discovery rule. But she contends the three facts the trial
court relied on do not demonstrate she knew or should have known prior to
October 16, 2020, when her new attorneys received Bolander’s file, that she
had a potential claim against KTS. We disagree.
According to Jo Ellen, the third amended complaint makes clear that
Bolander never showed her the October 11, 2018 letter from Donna’s attorney
threatening to challenge the Trust. She alleges she did not know about it
until years later, when her new attorneys found it in the file. Likewise, she
argues Donna’s June 2020 motion did not put her on notice that her attorney
had erred in drafting, managing, and administering the Trust because her
attorney said the motion, which ultimately yielded no damages, was
meritless. In her view, the motion triggered, at most, the statute of
limitations as to the preparation of the settlement agreement’s tax
provisions, not as to all her claims against Bolander and KTS.
Even if we accept these arguments as to the court’s first and third
reasons, we agree with the trial court’s second rationale that no other
reasonable conclusion can be drawn from the allegations in the third
amended complaint but that Jo Ellen had reason to know when she signed
the settlement agreement that the Trust was not drafted to prevent a
legitimate contest.
Jo Ellen argues she had already agreed to “provide for” Donna and “the
November 2018 settlement cannot be a basis for inquiry notice; it is, rather,
simply the memorialization of the promise [Jo Ellen] made to Donna through
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counsel in July 2018, and of the promise she made to Scott before his
passing.” But if her attorney “provided for” Donna as Jo Ellen requested,
then the attorney did nothing wrong, and Jo Ellen would not be suing.
Jo Ellen next maintains she only understood the settlement agreement
as avoiding the need for potential litigation. As an initial matter, her
assertion that she was unaware Donna had already initiated litigation by
filing a petition in the probate court is belied by the allegation in the third
amended complaint that “[a]s part of the Settlement Agreement, [Donna] by
and through her attorney . . . was to dismiss the Petition.”
Regardless, even if we accept Jo Ellen did not know Donna had already
filed a petition, a reasonable person would not settle for a substantial amount
of money unless she thought she risked losing more if litigation ensued.
Paragraph 41 of the third amended complaint asserts the reasons Donna
might sue, stating, “The Settlement Agreement in simple terms provided that
in an exchange for waiving any claim and/or interest in the [401(k)] PLAN
and/or the TRUST, [Jo Ellen] would provide certain other assets of value
from [Scott] to [Donna].” The third amended complaint further indicates Jo
Ellen understood herself to be the sole beneficiary of the Trust. If she
nonetheless thought Donna might sue for one of these reasons and had a
chance at prevailing, then Jo Ellen must have had reason to suspect her
attorney erred in drafting the Trust amendment and otherwise protecting the
estate after the marriage.
We are unpersuaded by Jo Ellen’s contention she was not on inquiry
notice because the degree of diligence expected of her in ferreting out
negligence is diminished within the context of a professional relationship.
(See Baright, 151 Cal.App.3d at p. 311.) Although this is true, a client
remains under a duty to investigate counsel’s actions when the client “has
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actual notice of facts sufficient to arouse the suspicions of a reasonable
person.” (Johnson v. Haberman & Kassoy (1988) 201 Cal.App.3d 1468, 1476.)
Here, the third amended complaint alleges Scott named Jo Ellen as his
only beneficiary before his marriage and did not change this designation with
the Trust amendment he signed after his marriage. It further alleges Jo
Ellen agreed to the settlement because she understood it to be “a good deal
and/or beneficial[,] as the settlement would put an end to future litigation by
[Donna.]” Regardless of whether she relied on counsel’s advice in entering
the settlement agreement, her understanding only makes sense if she
believed the likelihood of Donna’s lawsuit being successful warranted giving
up something of significant value—a sizeable portion of the Trust assets—to
avoid potential litigation. A reasonable person would question why
potentially meritorious litigation was possible where counsel’s directive in
amending the Trust had been to protect Jo Ellen’s interests against
challenges by Donna. Because Jo Ellen offers no other reasonable conclusion
from the third amended complaint’s facts, she has not demonstrated she was
reasonably diligent in discovering KTS’s wrongful acts.
Jo Ellen’s agreement with the settlement terms also satisfied
section 340.6’s actual damages requirement because her attorney’s
potentially negligent conduct required her to give more than half of the
Trust’s assets to an individual who was not designated as a beneficiary. This
constituted a loss. (See Jordache Enterprises, 18 Cal.4th at p. 760.)
In sum, the trial court correctly concluded Jo Ellen had inquiry notice
of her malpractice claims no later than November 16, 2018, when she signed
the settlement agreement, and that all tolling ceased by February 2019,
when GBS took over representation from KTS. (See § 340.6(a) [statute of
limitations tolled while “[t]he attorney continues to represent the plaintiff
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regarding the specific subject matter in which the alleged wrongful act or
omission occurred.”].) Jo Ellen’s October 6, 2021 complaint against KTS was
therefore untimely.
B.
Although Jo Ellen listed the court’s failure to grant leave to amend as
an “[i]ssue[] [p]resented” in her opening brief, we conclude she has not
established entitlement to relief.
We review an order denying leave to amend for abuse of discretion.
(Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) “In order to
demonstrate error, an appellant must supply the reviewing court with some
cogent argument supported by legal analysis and citation to the record.”
(City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286–287.) “[W]e
may disregard conclusory arguments that are not supported by pertinent
legal authority or fail to disclose the reasoning by which the appellant
reached the conclusions [the appellant] wants us to adopt.” (Id. at p. 287.)
Here, Jo Ellen has offered no argument as to how the court abused its
discretion. Accordingly, we deem this inadequately developed argument
forfeited. (See United Grand Corp. v. Malibu Hillbillies, LLC (2019)
36 Cal.App.5th 142, 161.)
Because Jo Ellen has not satisfied her burden of specifying what facts
she could add to demonstrate delayed discovery if granted leave to amend,
the contention also fails on the merits. (See Minnick v. Automotive Creations,
Inc. (2017) 13 Cal.App.5th 1000, 1004.)
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III.
We affirm. KTS shall recover its costs on appeal.
CASTILLO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
DATO, J.
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