Filed 8/3/20
            CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                        DIVISION THREE

KIMBERLY RALLO et al.,               B290526

       Plaintiffs and Appellants,    Los Angeles County
                                     Super. Ct. No.
       v.                            17STPB08014

VIRGINIA O’BRIAN,
as Trustee, etc.,

       Defendant and Respondent.


      APPEALS from judgments of dismissal of the Superior
Court of Los Angeles County. Elizabeth A. Lippitt, Judge.
Affirmed.
      Hunter Salcido & Toms and Robert L. Toms, Jr., for
Plaintiff and Appellant Kimberly Rallo.
      Law Offices of Jon Udewitz, Jonathan J. Udewitz;
Jeff Lewis Law, Jeffrey Lewis and Sean C. Rotstan for
Plaintiff and Appellant Adam Ross.


*     Under California Rules of Court, rules 8.1100 and 8.1110,
this opinion is certified for publication with the exception of
parts 1, 4, 5, and 6 of the Discussion.
     Loeb & Loeb, Gabrielle A. Vidal and Anita P. Wu for
Defendant and Respondent.
                 _________________________

                          INTRODUCTION
       “ ‘The right to dispose of property in contemplation of death
is as old as the right to acquire and possess property, and the
laws of all civilized countries recognize and protect this right.’ ”
(Estate of Della Sala (1999) 73 Cal.App.4th 463, 467 (Della
Sala).) This appeal stems from judgments entered after the
trial court sustained demurrers without leave to amend to
two probate petitions filed by Kimberly Rallo and Adam Ross
—adult children of the decedent Hugh O’Brian. At issue is
O’Brian’s right to choose to disinherit anyone claiming to be
his heir after his death. Kimberly and Adam each claim a right
to O’Brian’s assets under Probate Code section 21622 as children
he omitted from his trust solely because he was unaware of their
births. 1 Because we conclude the petitions do not allege facts
sufficient to state a cause of action, nor can they be amended
to do so, we affirm the judgments.
          FACTS AND PROCEDURAL BACKGROUND
       Hugh O’Brian, an actor best known for his role as Wyatt
Earp in a popular 1950s television series, died on September 5,
2016. He established the Hugh O’Brian Trust in January 1992.
In June 2006, O’Brian entered his only marriage with his long-
time girlfriend Virginia Barber, now Virginia O’Brian. He was

1    We refer to appellants, as the trial court did, by their first
names to avoid confusion. We intend no disrespect in doing so.
Undesignated statutory references are to the Probate Code.




                                 2
81. O’Brian executed his Third Amendment to and Restatement
of the Hugh O’Brian Trust in July 2009, and his Fourth
Amendment to the Hugh O’Brian Trust in January 2011.
We refer to these documents, collectively, as the “Trust.”
Virginia O’Brian is O’Brian’s surviving spouse and trustee
of the Trust (trustee).
       After O’Brian’s death, Adam, James Venverloh, Donald
Etkes, and Kimberly brought claims in the Superior Court,
seeking to receive an intestate share of O’Brian’s estate as his
unintentionally omitted children under section 21622. The
trustee demurred to both Kimberly’s petition and Adam’s and
Venverloh’s jointly-filed petition on the ground they failed to
state a claim for relief. The trial court sustained the demurrers
as to Kimberly and Adam with leave to amend. 2 Kimberly filed
a supplement to her “Petition to Establish Distribution Rights
of Omitted Child,” and Adam filed a “Second Amended Petition
to Establish Omitted Child’s Distribution Rights and Manner
of Satisfying His Share.”
       Consistent with the applicable standard of review, we draw
our statement of facts from the amended pleadings and matters
properly subject to judicial notice. 3 (Blank v. Kirwan (1985)


2     Etkes did not pursue his claim. The trial court sustained
the demurrer as to Venverloh without leave to amend. He did
not appeal.
3     Kimberly’s petition quotes provisions of the Trust, and she
attached the referenced Third Amendment/Restatement and
Fourth Amendment to her petition. The trustee submitted
a complete copy of the operative Trust instruments signed by
O’Brian that contain additional language in Article Two omitted




                                3
39 Cal.3d 311, 318 (Blank); Landmark Screens, LLC v. Morgan,
Lewis & Bockius, LLP (2010) 183 Cal.App.4th 238, 240.)
We treat as true “ ‘all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law.’ ” (Blank,
at p. 318.)
1.     The Trust
       The Trust allocates specific dollar amounts to about 20
or so of O’Brian’s named friends and family members, including
Virginia and O’Brian’s brother, sister-in-law, and nieces and
nephews, and individuals who worked for him, as well as to
the Motion Picture and Television Fund. Upon Virginia’s death,
the residue of the Trust assets are to be allocated to the O’Brian
Charitable Foundation.
       In Article Two of the Trust, entitled “Declarations
Regarding Family,” O’Brian declares, “I have no children, living
or deceased. [¶] I am intentionally not providing for HUGH
DONALD ETKES (also known as HUGH DONALD KRAMPE),
ADINA ETKES, JAMES E. VENVERLOH, BETTY DEAN, any
of their descendants, and any other person who claims to be a
descendant or heir of mine under any circumstances and without
regard to the nature of any evidence which may indicate status
as a descendant or heir.” 4



from Kimberly’s version of the Trust. The trial court took judicial
notice of the Trust documents submitted by the trustee as the
complete Trust and considered the additional language.
4     This second sentence is omitted from the version of the
Trust Kimberly attached to her petition.




                                4
        Paragraph 14 of Article 14 of the Trust, entitled “Omitted
Heirs,” similarly states, “Except as otherwise provided in this
Agreement, I have intentionally and with full knowledge omitted
to provide for HUGH DONALD ETKES (also known as HUGH
DONALD KRAMPE), ADINA ETKES, JAMES E. VENVERLOH,
BETTY DEAN, the descendants of any of them, and any of my
heirs who may be living at the date of my death.” The Fourth
Amendment to the Trust does not change these provisions.
2.      Kimberly
        From about January 1962 to February 1963, O’Brian
dated Kimberly’s mother, Carol Ann Schaeffer (now Carol Ann
Henson). Schaeffer discovered she was pregnant in February
or March 1963. O’Brian, a film star, was out of the country
at the time, so Schaeffer contacted his agent. The agent gave
her money and an address of a doctor in Tijuana and told her
to “ ‘take care of it.’ ” Schaeffer did not end the pregnancy
and was asked to see a doctor O’Brian knew.
        Schaeffer became romantically involved with Raymond
Cohen and married him in June 1963 before Kimberly was born.
Kimberly was born on August 31, 1963, and O’Brian paid the
doctor who delivered her. Cohen is listed as Kimberly’s father
on her birth certificate, but O’Brian is her biological father.
        Kimberly alleges O’Brian was not aware she was his child
at the time he executed the Trust. The petition alleges Etkes
and Venverloh claimed to be O’Brian’s sons and he specifically
excluded them from the Trust. “If O’Brian was aware that
Rallo was his child or even claimed to be his child at the time
of execution of his Trust, he would have specifically mentioned
Rallo one way or another,” but did not. Kimberly alleges DNA
evidence she submitted to “23andMe” shows she is a first cousin




                                5
of O’Brian’s niece and nephew and a half-sister of Venverloh,
“who claimed to be a son of O’Brian.”
       The supplement to the petition adds the following
allegations: O’Brian failed to provide for Kimberly in his Trust
“solely because [he] was unaware of [her birth] at the time he
executed the Trust. . . . [He] suffered from cognitive decline in
his 80s and at other times.” 5 Based on Kimberly’s information
and belief, O’Brian was diagnosed with Alzheimer’s disease
“or other significant cognitive mental decline.” She alleges
O’Brian “completely forgot” about her when he executed his Trust
due to “his cognitive impairment and the passage of time.” Had
O’Brian known Kimberly “as his child had been born at the time
he executed his Trust, [he] would have provided for [her].”
       Kimberly alleges she is entitled under section 21622 to a
share of O’Brian’s estate equal to what she would have received
as his child had he died intestate.
3.     Adam
       Adam’s second amended petition alleges he is a biological
child of O’Brian. Adam did not know O’Brian was his father
during O’Brian’s lifetime, and O’Brian “never had any knowledge
of Adam.” Adam alleges he has not received a full copy of
O’Brian’s testamentary documents. He alleges that, at the time
O’Brian executed those documents, O’Brian “was informed and
believed that he had no natural born children nor others that he

5      Kimberly’s initial petition only alleged O’Brian failed to
provide for her in his Trust “solely because O’Brian was unaware
of the birth of Rallo under section 21622. O’Brian was unaware
that Rallo was his child at the time of execution of his
testamentary instruments effective at the time of [his] death.”




                                6
adopted. The sole reason that [O’Brian] did not provide for Adam
in his testamentary documents is because [he] was unaware
of Adam’s birth.” The petition does not attach the Trust.
       Adam alleges he is entitled to his intestate share of
O’Brian’s estate or the assets held in his trust as an omitted
child under section 21622.
4.     Demurrers
       The trustee again demurred to Kimberly’s supplemented
petition on February 6, 2018, and to Adam’s second amended
petition on February 13, 2018, on the ground they failed to allege
facts sufficient to state a legal basis for relief under section
21622. On April 10, 2018, the trial court heard argument on both
demurrers and took the matter under submission. 6 On April 16,
2018, the trial court issued its written rulings sustaining the
demurrers without leave to amend. The court entered judgments
against Kimberly and Adam on May 4, 2018. They separately
appealed from the judgments of dismissal.
                            DISCUSSION
       Kimberly and Adam both contend they alleged sufficient
facts to state a claim under section 21622. They argue the
Trust’s general disinheritance clause does not preclude an
unknown child from recovering under section 21622, and they
adequately alleged facts showing O’Brian omitted them from his
Trust solely because he was unaware of their births. Kimberly




6    A different judicial officer, Judge Elizabeth A. Lippitt,
heard and decided this second round of demurrers. Judge
Barbara R. Johnson heard and decided the earlier demurrers.




                                7
also argues she should be able to prove her claim with DNA
evidence.
        Adam asserts several additional contentions of error. He
argues the trial court improperly took judicial notice of the Trust,
the Probate Code does not allow for demurrers in response to
petitions, the trial court did not describe what he needed to
amend or give him an opportunity to cure “any purported defects”
after sustaining the trustee’s first demurrer with leave to amend,
and he sufficiently pleaded a claim under section 248.
1.      Standards of review
        “On appeal from a judgment after a demurrer is sustained
without leave to amend, we assume the truth of the properly
pleaded factual allegations, facts that reasonably can be inferred
from those expressly pleaded, and facts of which judicial notice
can be taken.” (Syngenta Crop Protection, Inc. v. Helliker
(2006) 138 Cal.App.4th 1135, 1181.) “[W]e give the complaint
a reasonable interpretation, reading it as a whole and its parts
in their context.” (Blank, supra, 39 Cal.3d at p. 318.) “[W]e
examine the complaint de novo to determine whether it alleges
facts sufficient to state a cause of action under any legal theory.”
(McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.)
“ ‘If the complaint fails to plead, or if the defendant negates, any
essential element of a particular cause of action, this court should
affirm the sustaining of a demurrer.’ ” (Consumer Cause, Inc. v.
Arkopharma, Inc. (2003) 106 Cal.App.4th 824, 827.)
        When a demurrer is sustained without leave to amend, we
also must “decide whether there is a reasonable possibility that
the defect can be cured by amendment: if it can be, the trial
court has abused its discretion and we reverse; if not, there has
been no abuse of discretion and we affirm.” (Blank, supra,




                                 8
39 Cal.3d at p. 318.) “The burden of proving such reasonable
possibility is squarely on the plaintiff.” (Ibid.) Neither the
trial court nor this court will rewrite the complaint. (Gould v.
Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137,
1153.)
2.     Applicable law
       California’s Probate Code provides a statutory right of
recovery to children omitted from a decedent’s will or trust.
(§ 21600 et seq.) Section 21622 states: “If, at the time of the
execution of all of decedent’s testamentary instruments effective
at the time of decedent’s death, the decedent failed to provide
for a living child solely because the decedent believed the child to
be dead or was unaware of the birth of the child, the child shall
receive a share in the estate equal in value to that which the
child would have received if the decedent had died without
having executed any testamentary instruments.” 7 (Italics added.)
A child claiming relief under this section bears “the burden of
proof regarding the parent’s intent in omitting the child from
the will [or trust].” (Estate of Mowry (2003) 107 Cal.App.4th 338,
343 (Mowry).)
       An omitted child born after the decedent’s execution of his
testamentary instruments is treated differently. Under section
21620, such a child “shall receive a share in the decedent’s estate
equal in value to that which the child would have received if the
decedent had died without having executed any testamentary
instrument” unless the decedent’s intent to omit the child is


7    “ ‘[D]ecedent’s testamentary instruments’ means the
decedent’s will or revocable trust.” (§ 21601, subd. (a).)




                                 9
demonstrated through the specific circumstances identified in
section 21621. Relevant here, the child will not receive a share
of the estate if the objecting party establishes, “The decedent’s
failure to provide for the child in the decedent’s testamentary
instruments was intentional and that intention appears from
the testamentary instruments.” 8 (§ 21621, subd. (a).) Thus,
an after-born child does not bear the burden of providing the
decedent’s intent in omitting him or her from a will or trust.
       The Probate Code did not always distinguish between
omitted children born before execution of the testamentary
documents and those born after execution. Enacted in 1931,
former section 90 reflected the state’s “prior public policy against
unintentional omission of a child from a parent’s will.” (Mowry,
supra, 107 Cal.App.4th at p. 341.) That section provided, “ ‘When
a testator omits to provide in his will for any of his children, or
for the issue of any deceased child, whether born before or after
the making of the will or before or after the death of the testator,
and such child or issue are unprovided for by any settlement,
and have not had an equal proportion of the testator’s property
bestowed on them by way of advancement, unless it appears from
the will that such omission was intentional, such child or such
issue succeeds to the same share in the estate of the testator as
if he had died intestate.’ ” (Della Sala, supra, 73 Cal.App.4th

8      The child also will not recover if the decedent provided
“substantially all the estate to the other parent of the omitted
child,” or the decedent provided for the omitted child “by transfer
outside of the estate” and intended the transfer to be in lieu
of providing for the child in his or her will or trust. (§ 21621,
subds. (b), (c).)




                                10
at p. 468.) Former section 90 thus presumed the omission of
any child from a will was unintentional (Mowry, supra, 107
Cal.App.4th at p. 343), unless the testator’s intent to do so
appeared in the will, similar to the exception now stated in
section 21621.
       Section 90 was criticized, however, as “serv[ing] to frustrate
the testator’s wishes.” (Della Sala, supra, 73 Cal.App.4th at
p. 469.) The Legislature repealed section 90 and enacted sections
6570 to 6572—the predecessors to sections 21620 to 21622.
(Della Sala, at p. 469.) Those sections are based on section 2-302
of the Uniform Probate Code, which distinguishes between
after-born children and children living when a will or trust is
executed. 9 (Della Sala, at p. 469.) After reviewing the legislative
history, the court in Della Sala concluded the Legislature
intended to change the law when it repealed section 90. (Della
Sala, at p. 469.) The court explained, “the Legislature recognized
that usually a failure to provide for a living child is intentional
and concluded that such an intent should be upheld in the usual
case.” (Id. at p. 470.)
       Accordingly, the enactment of the predecessor to section
21622 changed the statutory treatment of omitted children
living at the time the decedent executed his will or trust.
(Mowry, supra, 107 Cal.App.4th at p. 343; Della Sala, supra,
73 Cal.App.4th at p. 469.) Now, a living child who desires to
“override” a parent’s testamentary disposition of his property

9      The Uniform Probate Code’s provision allowing an omitted
living child to recover applied only to children mistakenly
believed to be dead. The Legislature drafted California’s
provision to include unknown children as well.




                                 11
to obtain a distribution contrary to it must prove “the sole reason
[the parent] did not provide for [the child] was a mistaken belief
[the child] was dead [or an unawareness of the child’s birth].”
(Della Sala, at pp. 469-470.) The presumption against
unintentional omission remains intact for after-born children,
however. They are “entitled to an intestate share unless an
intention not to provide for the child appears from the will,”
or other exception under section 21621 is demonstrated.
(Della Sala, at p. 469, fn. 4, italics added.) 10
      It is undisputed appellants were born before O’Brian
executed his Trust. Accordingly, they seek a share of O’Brian’s
estate under section 21622; section 21620 does not apply to them.
To survive demurrer, therefore, appellants must allege facts
showing “the sole reason” O’Brian did not provide for them was
his unawareness of their births.



10     In Della Sala, the petitioner contended he was entitled to a
share of his father’s estate because his father mistakenly believed
he was dead at the time he executed his will. (Della Sala, supra,
73 Cal.App.4th at p. 465.) The appellant argued the estate
had the burden of proving his father was aware of his child’s
“continued existence” and intentionally omitted him from the
will. (Id. at p. 467.) The court of appeal rejected that contention,
finding the Legislature changed the law when it repealed former
section 90. (Della Sala, at p. 469.) The decedent had told his
executor he had no living relatives, but nevertheless visited
petitioner and had contact with him after that comment. (Id. at
pp. 470-471.) The court concluded the petitioner had not proved
his father believed he was dead and thus could not recover under
the predecessor to section 21622. (Della Sala, at p. 471.)




                                12
3.      The trial court properly interpreted section 21622
        Kimberly and Adam both assert a general disinheritance
clause—like the one found in the Trust—cannot defeat a claim
under section 21622. They contend a general disinheritance
clause may defeat only a claim brought by an unknown child
born after the execution of a will or trust under section 21620
because section 21621—which they argue gives effect to general
disinheritance clauses—expressly applies only to section 21620
claims.
        The principles of statutory construction are well-
established. “ ‘We begin by examining the statutory language,
giving the words their usual and ordinary meaning.’ ” (Estate
of Pryor (2009) 177 Cal.App.4th 1466, 1471.) “The words of
the statute must be construed in context, keeping in mind the
statutory purpose, and statutes or statutory sections relating
to the same subject must be harmonized, both internally and
with each other, to the extent possible.” (Dyna-Med, Inc. v. Fair
Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.)
“ ‘If there is no ambiguity, then we presume the lawmakers meant
what they said, and the plain meaning of the language governs.
[Citations.]’ ” (Estate of Pryor, at p. 1471.)
         “[W]hen the language of a statute is clear, we need go
no further.” (Switzer v. Wood (2019) 35 Cal.App.5th 116, 128.)
“ ‘If, however, the statutory terms are ambiguous, then we may
resort to extrinsic sources, including the ostensible objects to be
achieved and the legislative history.’ ” (Estate of Pryor, supra,
177 Cal.App.4th at p. 1471.) We also need not “follow the plain
meaning of a statute when to do so would frustrate the manifest
purpose of the legislation as a whole or otherwise lead to absurd
results.” (Switzer, at p. 129.) However, “ ‘[t]o justify departing




                                13
from a literal reading of a clearly worded statute, the results
produced must be so unreasonable the Legislature could not
have intended them.’ ” (Ibid.)
       a.    Section 21622 does not preclude application of
             a general disinheritance clause
       Appellants argue that by separating former section 90 into
three separate sections, the Legislature “limited the application
of general disinheritance clauses” to claims brought under
section 21620. The plain language of the omitted child statutes,
sections 21620-21622, belie appellants’ interpretation. True,
section 21621 identifies the statutory exceptions to a section
21620 claim. Yet, no statute states that a general disinheritance
clause—like that described in section 21621, subdivision (a)—
may not act to omit an unknown child born before the decedent
executed the will or trust containing the disinheritance clause.
       The plain language of section 21621 merely states that
an after-born child cannot recover under section 21620 if one of
the stated circumstances—including the existence of a general
disinheritance clause—is demonstrated. That statute does not
state, however, that the circumstances it describes are effective
against section 21620 claims alone. Quite the opposite: section
21621 limits an objector’s ability to prevent an after-born child
from recovering part of an estate under section 21620. In other
words, recovery for an omitted after-born child under section
21620 is mandatory unless the decedent’s intent not to provide
for the child in a will or trust is established through one of the
three enumerated exceptions.
       In contrast, an omitted child’s recovery under section 21622
is conditional: (1) the decedent must have been unaware of the
child’s birth (or mistaken about the child’s death), and (2) the




                                14
decedent must have failed to provide for the unknown child
solely because of that lack of awareness (or mistaken belief).
The language is clear. Recovery under section 21622 is available
only if the child can prove the two conditions to demonstrate the
omission was unintentional. In contrast, a child’s omission is
presumed unintentional under section 21620 unless proof of the
testator’s intent exists as stated in section 21621. But nothing
in the plain language of section 21622 or elsewhere prevents a
trustor from expressing his intent to disinherit potential heirs
living at the time—even if unknown to the trustor—by including
a general disinheritance clause in his trust. And, because there
could be any number of ways a decedent could decide not to
provide for unknown heirs, including children, there would be
no reason for the Legislature to enumerate those reasons in
section 21622. The section’s lack of reference to section 21621,
therefore, does not preclude the application of a general
disinheritance clause to an unknown child claiming relief under
section 21622 as appellants contend. Rather, it merely shows
a general disinheritance clause, or other exception stated in
section 21621, is not required for an omitted child’s claim to fail
under section 21622.
       Mowry and Della Sala support this interpretation. As
appellants note, the court in Mowry explained that by its terms
and placement after section 21620, “section 21621 is meant to
apply only when section 21620 is applicable: where a child is
born or adopted after execution of the testamentary document.”
(Mowry, supra, 107 Cal.App.4th at p. 341.) There, the omitted
child was born before her parent signed his will, but nevertheless
contended section 21621 applied, requiring the testator’s intent
not to provide for her to appear on the face of his will. (Mowry,




                                15
at pp. 340-341.) Because section 21620 did not apply, the child
bore the burden to prove her parent mistakenly omitted her
from his will. She did not, and thus could not recover part of
her parent’s estate as an omitted child. (Mowry, at pp. 343-344.)
       The court in Mowry did not conclude, however, that a
disinheritance clause cannot demonstrate an intent to omit
a living child from a will. To the contrary, the court concluded
a will need not express the testator’s intent to exclude a living
child to defeat a claim under section 21622, as is required to
preclude an after-born child from recovering under section 21620.
       Moreover, the court in Della Sala acknowledged that,
through the omitted children statutes, “the Legislature has
attempted to balance the possibility of inadvertent disinheritance
against the freedom of testamentary disposition of property with
respect to the paramount concern of carrying out the testator’s
intent.” (Della Sala, supra, 73 Cal.App.4th at p. 468 & fn. 3
[noting the court was not addressing the “alleged public policy
against disinheritance of children,” as the Probate Code
elsewhere provides for the support of dependent children upon
a parent’s death “without regard to testamentary disposition”].)
The court recognized, however, “the paramount concern in the
construction of wills is to ascertain and give effect to the intent
of the testator, as far as possible.” (Id. at p. 468.)
       It does not logically follow—as appellants assert—that a
will or trust actually expressing the decedent’s intent to exclude
a living child—known or unknown—cannot apply to defeat an
omitted child’s claim under section 21622. The existence of a
general disinheritance clause bears on the testator’s or trustor’s
intent. If the decedent’s testamentary documents show his intent
to exclude potential children, even those whose identities are




                                16
unknown to him, then the decedent did not fail to provide for an
unknown child solely because he was unaware of the child’s birth.
       It would be absurd to read section 21622 as requiring a
court to uphold a decedent’s intended testamentary disposition
unless the omitted child can show the sole reason the decedent
did not provide for the child was his unawareness of the child’s
birth (Della Sala, supra, 73 Cal.App.4th at p. 469), but to ignore
a provision in the decedent’s will or trust expressing his intent
not to provide for any children about whom he was unaware.
       In short, the trial court did not err in considering the
Trust’s disinheritance provisions to assess whether appellants
could state facts showing they were entitled to relief under
section 21622. 11




11     Appellants also contend a general disinheritance clause
cannot apply to unknown living children because the testator’s
mistake as to an unknown child or child thought to be dead
cannot appear on the face of a will or trust. Nothing in the
statutory language indicates that, by including unknown children
and children mistakenly thought dead under section 21622, the
Legislature intended to prevent a general disinheritance clause
from taking effect to exclude living children who may not become
known until after a testator’s death. To the contrary, if the face
of the trust or will shows a reason why the testator intended not
to provide for a general class of heirs or children about whom he
was unaware, then by the express language of section 21622 the
unknown child could not recover. Nothing requires the testator
to name the unknown child—and of course he could not.




                               17
      b.     Section 21622 requires appellants to plead facts
             showing O’Brian was unaware of their existence and
             his unawareness was the sole reason for omitting
             them from the Trust
       Adam contends the distribution right under section 21622
for an unknown child born before the execution of a testamentary
document “exists irrespective of the decedent’s intentions.”
He asserts section 21622 “carves out a distribution right for . . .
unknown children solely because they are unknown.” Adam
thus contends the statute requires only that he allege he was
unknown to O’Brian, not that O’Brian would have treated him
differently had he been aware of him. We cannot agree.
       The statute unambiguously carves out a distribution right
for unknown children only if they can prove the only reason the
decedent did not provide for them was because he did not know
they existed. 12 Stated another way, to recover under section
21622, the omitted child must show the decedent would have
provided for him but for the fact that the decedent was unaware
of the child’s existence when he executed his will or trust.
       Adam “has the burden of proof as to each fact essential
to his claim for relief.” (Della Sala, supra, 73 Cal.App.4th at
p. 470.) As we have discussed, unlike after-born children,
the law does not presume living children like appellants were
unintentionally omitted because they were unknown. Appellants’

12     As the trustee notes, “solely” is defined as “to the exclusion
of all else” and “singly.” Synonyms include “exclusively” and
“only.” (Merriam-Webster.com Dict. <http://www.merriam-
webster.com/dictionary/solely> [as of July 30, 2020], archived
at <https://perma.cc/29P5-MKRG>.)




                                 18
burden of proof, therefore, includes “[O’Brian’s] intent in omitting
[them] from the will [or trust].” (Mowry, supra, 107 Cal.App.4th
at p. 343.) Adam cannot simply plead O’Brian was unaware of
his birth to demonstrate O’Brian mistakenly omitted him from
the Trust, as Adam contends. Rather, as noted, the statute,
and authority interpreting it, clearly require the omitted child
to prove the decedent’s only reason for failing to provide for the
child was his unawareness of the child or mistake as to his death
—not the decedent’s unawareness or mistake alone. Thus, as the
trial court correctly found, to obtain a distribution of the Trust
assets contrary to its express terms under section 21622,
appellants must plead and prove facts demonstrating “the sole
reason” O’Brian did not provide for them in his Trust was his
unawareness of their births. (Della Sala, supra, 73 Cal.App.4th
at p. 469.)
4.     The amended petitions do not allege facts sufficient
       to state a claim for relief under section 21622
       a.     The Trust’s disinheritance provisions apply to
              appellants
       The trial court found appellants’ amended pleadings failed
to allege facts indicating—or from which the court could conclude
—O’Brian’s only reason for not providing for them in his Trust
was his unawareness of their births. As we discuss below, the
court properly took judicial notice of the Trust and considered its
terms, some of which were included or referred to in the petitions,
in ruling on the demurrers.
       First, the court rejected Adam’s argument that the
applicable Trust provisions were ambiguous because the Trust
provided specific gifts to specific relatives of O’Brian while also
“excluding any ‘heirs.’ ” We agree with the trial court.




                                19
        As the court noted, in Article Two of the Trust, O’Brian
stated he was “intentionally not providing for” any person “who
claims to be [his] descendant or heir,” and Article 14 expressly
conditions O’Brian’s intentional omission of “any of [his] heirs
who may be living at the date of [his] death” on the phrase,
“[e]xcept as otherwise provided in this Agreement.” (Italics
added.) These two provisions are consistent with the specific
gifts O’Brian made to designated relatives. The trust already
provides for them, and they already have been deemed—rather
than claim to be—heirs or descendants.
        Moreover, we concur with the trial court’s reasoning that
the Trust’s omission of those claiming to be an heir, “under any
circumstances and without regard to the nature of any evidence
which may indicate status as a descendent or heir” (italics added)
and of “heirs who may be living at the date of [O’Brian’s] death”
unambiguously reflects O’Brian’s intent “to disinherit any heir
not provided for, even those he was not aware of.” (See, e.g.,
Estate of Katleman (1993) 13 Cal.App.4th 51, 60 (Katleman)
[“If a testator expresses an intent to disinherit his or her ‘heirs,’
‘legal heirs,’ ‘relatives’ and the like, such language is generally
found sufficient to disinherit a child who was alive at the time
the will was executed or a surviving spouse who was then
married to the testator.”].) 13

13     Similar language has been held insufficient to demonstrate
a testator’s intent to disinherit a subsequently acquired spouse
or after-born child. (Katleman, supra, 13 Cal.App.4th at p. 60
[“A person who was not then an heir or legal heir, and whose
subsequent relationship was not yet known or contemplated,
could not then have been considered by the testator to be such.”];
see also Mowry, supra, 107 Cal.App.4th at pp. 343-344




                                 20
      Appellants nevertheless contend they cannot be
excluded under the Trust because they are not named in the
disinheritance clause as are the individuals who allegedly
claimed to be O’Brian’s children while O’Brian was alive. But,
had O’Brian intended to limit the disinheritance clauses to those
he specifically named, he would not have included the language
“any other person who claims to be a descendant or heir” or “any
of my heirs” in those provisions. As alleged children about whom
O’Brian was unaware, Kimberly and Adam clearly fall into those




[explaining this statement in Katleman “is consistent with our
current statutes involving omitted children who are born or
adopted after execution of the testamentary document”].) The
court in Katleman explained the above language was “broad
enough to include a present spouse, [but] such terms are not
sufficient to show an intent to disinherit a subsequently acquired
spouse, unless the will’s language clearly demonstrates that
the testator contemplated the possibility of a later marriage.”
(Katleman, at p. 60.) The court noted, “a disinheritance clause
which excluded ‘any person who may, after the date of this will,
become my heir or heirs by reason of marriage or otherwise’
was found adequate to overcome the pretermission rights of
the testator’s subsequently acquired spouse.” (Ibid.) Here,
as children born before O’Brian executed his Trust, appellants
allegedly already were his heirs. But, even if O’Brian did
not consider them his heirs because he was unaware of their
existence, as appellants argue, the Trust’s exclusion of any
person claiming to be an heir and any heir who may be alive at
O’Brian’s death is sufficiently broad to include potential heirs
O’Brian was unaware of at the time.




                                21
expressed categories of individuals O’Brian intended to omit from
his Trust. 14
       This is so even if O’Brian was mistaken when he declared
he had no children. As the trial court concluded, O’Brian’s
declaration that he has “no children, living or deceased” did not
change the Trust’s intent to disinherit unprovided for known or
unknown heirs, like Kimberly and Adam. As the court explained,
“[s]imply put, the language of the Trust would clearly not provide
for a person in Adam’s [or Kimberly’s] circumstances as pled
regardless of whether [O’Brian] was aware of [their] birth[s]
at all.”
       Accordingly, we conclude the court did not err in finding
the disinheritance provisions in the Trust applied to omit
Kimberly and Adam, as alleged unknown children of O’Brian.
       b.     Appellants failed to allege facts showing O’Brian
              would not have excluded them had he been aware
              of their existence
       The trial court also correctly concluded appellants did not
allege facts demonstrating O’Brian would not have disinherited
them had he been aware of their births. As the trial court noted,
appellants were not required to allege how O’Brian would have
provided for them. But, in light of the Trust’s disinheritance
clauses, to show O’Brian excluded appellants solely because
he was unaware of their births, appellants had to allege facts

14    The term “heirs” includes children. (See § 44 [“ ‘Heir’
means any person . . . who is entitled to take property of the
decedent by intestate succession under this code.”].) We thus
also reject Adam’s contention the Trust’s inclusion of separate
definitions for “heirs” and “children” creates ambiguity.




                                22
indicating O’Brian would not have included the general
disinheritance clause had he been aware of their births or—
as the trial court put it—“other like situations leading to the
conclusion that [O’Brian] did not provide for [appellants] ‘solely
because’ of his unawareness of [their] birth[s].” They did not.
       Kimberly supplemented her petition to allege O’Brian was
unaware of her birth at the time he executed his Trust because
he “completely forgot about” her due to the passage of time or
his cognitive impairment. She also added that, had O’Brian
“actually known” she was “his child [and] had been born at the
time he executed his Trust, O’Brian would have provided for
[her]. O’Brian provided for his brother, sister-in-law, and nieces
and nephews.” Kimberly’s supplemented petition also alleges
“O’Brian failed to provide for [her] in his Trust” and in any
applicable will, “solely because O’Brian was unaware of the
birth of [Kimberly] at the time he executed the Trust” and “was
unaware that [she] was his child at the time of execution of his
Trust.” She alleges O’Brian “thought that he was without linear
issue,” when he executed his Trust. The supplement also states
O’Brian intentionally omitted to provide for Etkes and Venverloh
in the Trust, “who claimed to be sons of O’Brian,” but the Trust
does not mention Kimberly.
       Adam in turn generally alleges O’Brian believed he had no
children at the time he executed the Trust. He alleges O’Brian
had no knowledge of him, and he did not know O’Brian was his
father until after O’Brian died. Adam amended his petition to
allege, “The sole reason that [O’Brian] did not provide for [him]
in his testamentary documents is because [O’Brian] was unaware
of Adam’s birth.”




                               23
       None of these facts demonstrates or leads to a conclusion
that O’Brian would have constructed his Trust differently to
provide for Kimberly or Adam had he known they existed at the
time he executed the Trust. If anything, the fact that O’Brian
specifically disinherited two individuals—Venverloh and Etkes—
whom he was aware claimed to be his sons, supports the opposite
conclusion: that O’Brian also would not have provided for
Kimberly (or Adam) had he been aware of her existence at the
time. Indeed, in Kimberly’s initial petition, she alleged she is
Venverloh’s half-sister. Nothing in Kimberly’s petition suggests
O’Brian would have provided for her when he did not provide for
her alleged half-brother.
       Similarly, the earlier petition Adam and Venverloh jointly
filed alleges Venverloh is O’Brian’s biological son, Venverloh
informed O’Brian that he was his son, and O’Brian denied
parentage and told Venverloh that he “had nothing to gain from
establishing contact with [Venverloh.]” Again, O’Brian’s specific
exclusion of Venverloh from his Trust after allegedly being
informed of his birth suggests O’Brian would have treated Adam
similarly. It certainly does not support a conclusion that, had
O’Brian been aware of Adam’s birth, he would have reacted
differently and provided for Adam. (Shoemaker v. Myers (1990)
52 Cal.3d 1, 12 [“The general rule . . . is that material factual
allegations in a verified pleading that are omitted in a
subsequent amended pleading without adequate explanation
will be considered by the court in ruling on a demurrer to the
later pleading.”].) 15

15    Indeed, Adam’s earlier petition alleges his “ability to be
included or excluded from [O’Brian’s] testamentary instruments




                               24
       Nor does O’Brian’s provision for certain relatives in his
Trust—his brother, sister-in-law, nieces and nephews—indicate
O’Brian would have provided for children with whom he had
no relationship had he been aware of their existence at the
time he executed his Trust when he was over 80 years old.
       We also conclude Kimberly and Adam did not cure their
defective pleadings by conclusorily alleging O’Brian failed
to provide for them solely because he was unaware of their
existence. Repeating the statutory requirements does not provide
a factual basis for those requirements, particularly when one of
them—O’Brian’s intent—is negated by the Trust’s disinheritance
provisions. Moreover, as the trustee notes, as a “general rule . . .
statutory causes of action must be pleaded with particularity.”
(Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771,
790.) Adam contends his allegations repeating the requirements
for relief under section 21622 are sufficient because they inform
the trustee of the basis for his claims. He argues the trustee has



will never be known” because O’Brian believed that he had no
children at the time. The petition continues, “Had [O’Brian]
been aware of Adam’s birth, [O’Brian] could have specifically
disinherited Adam knowing Adam was indeed [O’Brian’s] son.
Or [O’Brian] could have given Adam a gift, as [O’Brian] did
provide for those persons that [O’Brian] mistakenly thought
were his next of kin (believing that he had no children), namely
[O’Brian’s] siblings and their issue.” These allegations
essentially admit Adam can allege no facts to show O’Brian
excluded Adam from his Trust only because he was unaware
of him. We need not consider these allegations, however, to
conclude the trial court ruled correctly.




                                25
superior knowledge of the facts, and he “has no way of providing
. . . detailed information except through discovery.”
        Adam’s lack of knowledge does not excuse his failure—
or Kimberly’s—to allege facts supporting his conclusions of law.
As the trustee asserts, the trial court did not sustain the
demurrers on the ground the petition’s allegations were
uncertain or vague, but because they alleged no factual basis for
the assertion O’Brian’s unawareness of appellants’ existence was
the sole reason he did not provide for Adam or Kimberly. (See
Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612,
615-620 [reversing order sustaining demurrer on ground
allegations as to nature and duration of oral agreement were
uncertain, acknowledging oral contract “may be pleaded
generally as to its effect,” but affirming sustaining of demurrer
on other tort causes of action for failure to allege a factual basis
for the claims beyond generally pleading their elements].)
        To overcome the trustee’s demurrers, appellants had to do
more than conclusorily allege O’Brian failed to provide for them
solely because he was unaware of their births when he executed
his Trust. “[S]imply parroting the language of [the statute] in
the [petition] is insufficient to state a cause of action.” (Hawkins
v. TACA Internat. Airlines, S.A. (2014) 223 Cal.App.4th 466, 470-
471, 474-476, 478 [rejecting plaintiff’s contention she need not
allege specific facts to state a cause of action against airlines for
entering into underfunded contracts in violation of statute when
she had not seen the contracts].)
5.      Appellants were not entitled to leave to amend again
        After sustaining the trustee’s first demurrers, the trial
court gave appellants an opportunity to amend their petitions to
allege facts demonstrating O’Brian excluded them from his Trust




                                 26
for no other reason than his unawareness of their existence.
They failed to do so. Nor have appellants indicated how they
reasonably might allege a factual basis demonstrating they
are entitled to relief under section 21622 in the face of the
Trust’s disinheritance provisions. Given the Trust’s terms and
appellants’ inability to allege any facts indicating O’Brian would
not have failed to provide for them in the Trust had he been
aware of their births, we conclude appellants are not reasonably
likely to amend their petitions successfully if given another
opportunity to do so. Accordingly, the trial court did not abuse
its discretion when it sustained the demurrers without leave
to amend. 16 (Blank, supra, 39 Cal.3d at p. 318.)
6.     Adam’s additional contentions
       a.    Judicial notice of the Trust was proper
       Adam contends the trial court prejudicially erred in taking
judicial notice of the Trust’s terms. 17 “[A] demurrer may be
sustained where judicially noticeable facts render the pleading
defective.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214
Cal.App.4th 743, 751 (Scott).) Moreover, “ ‘[w]here written
documents are the foundation of an action and are attached to
the complaint and incorporated therein by reference, they become


16    Because we affirm the judgment against Kimberly, we need
not consider her contention that she should be allowed to present
DNA evidence to prove she is O’Brian’s child. Moreover, in ruling
on the demurrer, the court assumed the truth of Kimberly’s
allegation that O’Brian was her father.
17    On appeal, Kimberly does not contest the trial court’s
consideration of the Trust.




                                27
part of the complaint and may be considered on demurrer.’ ”
(Qualcomm, Inc. v. Certain Underwriters at Lloyd’s, London
(2008) 161 Cal.App.4th 184, 191.) “Additionally, judicial notice
of matters upon demurrer will be dispositive in those instances
where there is not or cannot be a factual dispute concerning that
which is sought to be judicially noticed.” (Bridgeman v. Allen
(2013) 219 Cal.App.4th 288, 293, fn. 1.) We review the trial
court’s decision to take judicial notice for abuse of discretion.
(In re Social Services Payment Cases (2008) 166 Cal.App.4th
1249, 1271.)
       The court did not abuse its discretion by considering the
Trust, and its terms, filed by the trustee. Without the Trust,
appellants would have no claim under section 21622. Kimberly’s
petition quoted from the Trust and attached a version of it.
Adam did not attach a copy of the Trust to any of his petitions.
Nevertheless, his operative petition refers to the Trust, O’Brian’s
failure to provide for him in the Trust, and O’Brian’s belief that
he did not have any children at the time he executed the Trust.
Adam also describes specific property held by the Trust.
Moreover, in his superseded petition, Adam admitted O’Brian
“included a disinheritance clause in [h]is testamentary
documents” and refers to O’Brian’s “intention to disinherit
his ‘heirs’ or ‘legal heirs.’ ” That version of Adam’s petition also
refers to O’Brian’s provision for other relatives in the Trust and
the specific exclusion of Venverloh from it.
       As Adam refers to and relies on the Trust and its terms
in his previous and operative petitions, it was appropriate for
the court to take judicial notice of it. (See Align Technology, Inc.
v. Tran (2009) 179 Cal.App.4th 949, 956, fn. 6 [on demurrer,
court able to take judicial notice of settlement agreement referred




                                28
to in complaint]; Estate of Cooper (1983) 142 Cal.App.3d 118, 122
[finding court’s consideration of probated will and codicil did
not “improperly look[ ] beyond the face of the petition” and were
subject to judicial notice]; see also Shoemaker v. Myers, supra,
52 Cal.3d at p. 12 [earlier omitted allegations will be considered
in ruling on a demurrer to a later pleading].)
       Moreover, “where judicial notice is requested of a legally
operative document—like a contract—the court may take judicial
notice not only of the fact of the document . . ., but also facts that
clearly derive from its legal effect.” (Scott, supra, 214 Cal.App.4th
at p. 754.) In other words, the court may take judicial notice of
a “ ‘document’s legally operative language, assuming there is
no genuine dispute regarding the document’s authenticity.’ ”
(Id. at p. 755; see also Evid. Code, § 452, subd. (h) [court may
take judicial notice of facts “not reasonably subject to dispute
and are capable of immediate and accurate determination by
resort to sources of reasonably indisputable accuracy”].)
       Here, no one disputes the Trust’s authenticity. The
attorney who drafted the Trust authenticated the documents
he attached as the operative Trust in effect at the time of
O’Brian’s death. The Trust also has been part of the court file
since December 2017. (Evid. Code, § 452, subd. (d) [court may
take judicial notice of court records].) Adam concedes he does not
dispute the existence or authenticity of the Trust. 18 Really,

18     Nor did Adam contend O’Brian did not execute the Trust,
or that it otherwise was inauthentic, in response to the demurrer.
He merely stated the Trust, and declarations attaching it, were
“not documents or facts within documents that [he] has admitted
[are] not in dispute.”




                                 29
Adam disagrees with the court’s interpretation of the Trust
terms. He contends that, because he disputes the meaning of the
Trust terms, the trial court erred in taking judicial notice of
them.
       When a court takes judicial notice of a document on
demurrer, it does not “accept[ ] a particular interpretation of its
meaning,” when the meaning is in dispute. (Fremont Indemnity
Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113
(Fremont); StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th
449, 457, fn. 9.) Contrary to Adam’s contention, the trial court
did not take judicial notice of the meaning or a particular
interpretation of the Trust terms. The court considered the terms
as stated in the Trust and independently determined whether
they precluded appellants from recovering under section 21622
as a matter of law. Nor did the court improperly consider the
trustee’s and O’Brian’s attorneys’ declarations, as Adam argues.
No facts asserted in those declarations were contested. The
declarants did not purport to opine on the meaning of the
Trust terms. O’Brian’s attorney simply authenticated the
Trust documents as true copies of those executed by O’Brian
and in effect at the time of his death. The trustee’s attorney
in turn introduced and authenticated the former declaration.
       And, as noted, the Trust terms are not ambiguous or
in conflict with each other. Accordingly, the trial court did
not abuse its discretion by taking judicial notice of the Trust
and considering its terms. 19


19    Although the trustee did not officially request judicial
notice of the Trust, as Adam notes, the trial court was permitted
to take judicial notice of the Trust on its own motion. (Scott,




                                30
       b.    The court was authorized to consider the demurrers
       We also reject Adam’s contention the court may
not consider a demurrer to a probate petition. As Adam
acknowledges, the Code of Civil Procedure applies to probate
proceedings, “[e]xcept to the extent that [the Probate] code
provides applicable rules.” (§ 1000, subd. (a).) Section 1043
allows an interested party to object to a probate petition. As the
trial court said, a demurrer is a form of objection. (See Code Civ.
Proc., § 430.10 [party “may object, by demurrer or answer,” to a
complaint filed against it].) The Probate Code does not preclude
filing a demurrer to object to a petition’s failure to state a cause
of action. And, as the trial court noted, demurrers routinely are
considered in probate proceedings. (See, e.g., Estate of Pryor,
supra, 177 Cal.App.4th at pp. 1468, 1470 [considering order
sustaining demurrer to petition that claimed a donative transfer
was improper]; Johnson v. Kotyck (1999) 76 Cal.App.4th 83, 86,


supra, 214 Cal.App.4th at p. 752 [judicial notice proper on
demurrer despite lack of formal request because “the court
may take judicial notice on its own volition,” and plaintiff had
opportunity to object]; Evid. Code, § 455, subd. (a).) We reject
Adam’s contention he had no opportunity to object. He did. The
trustee first submitted the authenticated Trust with its initial
demurrers to Kimberly’s and Adam’s petitions in December 2017
—almost two months before Adam filed his second amended
petition. Adam objected to the court’s consideration of the Trust’s
terms in his response to both demurrers in January and March
2018. Indeed, in his response to the second demurrer, Adam
specifically argued the court should not take judicial notice
of the Trust or its terms or the declarations authenticating
the documents.




                                 31
91 [affirming judgment after dismissal of petition for accounting
following order sustaining demurrer]; Estate of Cooper, supra,
142 Cal.App.3d at pp. 120-121 [affirming judgment after order
sustaining demurrer to spouse’s petition to recover share of
estate where decedent’s will expressed intent not to provide
for her].) Nor has Adam cited any authority holding a probate
court may not consider a demurrer.
      c.      The trial court did not prejudicially err when it
              did not tell Adam how to amend his petition
      For the first time on appeal, Adam contends the trial court
did not state the specific grounds on which it sustained the
trustee’s first demurrer with leave to amend in time for Adam
to cure the defect. We need not consider objections not made
in the trial court. (Cabrini Villas Homeowners Assn. v.
Haghverdian (2003) 111 Cal.App.4th 683, 693 [“ ‘An appellate
court will not consider procedural defects or erroneous rulings
where an objection could have been, but was not, raised in the
court below.’ ”].) Nevertheless, Adam has not demonstrated
prejudicial error.
      Adam contends the trial court would not tell him how to
amend his complaint and did not state its ground for sustaining
the demurrer until it issued a Nunc Pro Tunc Order on
January 30, 2018, that Adam did not receive until after he filed
his second amended petition. Although the court’s initial minute
order, filed January 18, 2018, did not state the ground on which
the court sustained the demurrer, at the hearing the court made




                               32
clear the ground for its ruling was the petition’s failure to state
facts sufficient to state a claim for relief under section 21622. 20
       The court explained, “if the petitioner can successfully
plead entitlement under 21622, then . . . he can state a claim.
[¶] I don’t believe that [Venverloh] can state a cause of action
because he was specifically excluded in the trust, and so,
therefore, I am denying . . . his petition without leave to amend.
[¶] As to . . . Adam, he has pleaded that . . . the Decedent[ ]
had no knowledge of him . . . . He may state a claim. And I am
sustaining his petition with leave to amend.” When Adam’s
attorney asked the court what needed to be amended, the court
explained, “If [Adam] can form his pleading to include himself
in [section] 21622 . . . . I can’t tell you what’s missing. But I
can tell you that there is room for amendment since it is to be
liberally construed.”
       Moreover, Adam has not demonstrated prejudice. The
trustee’s only ground for demurring to Adam’s first amended
petition was that the petition “fails to allege facts sufficient to
constitute any legal basis for relief.” The trustee’s memorandum
of points and authorities argued the petition could not “satisfy
any of the required statutory elements for claiming relief under
Section 21622,” the sole basis for Adam’s claim to a share of


20     The Nunc Pro Tunc order stated the court’s ground and
reasoning for sustaining the petition as: “The petition fails
to allege sufficient facts demonstrating that Decedent omitted
Petitioner Adam Ross solely because of an unawareness of his
birth.” Of course, a court sustaining a demurrer “is not required
to state its reasons for sustaining the demurrer on the specified
grounds.” (Fremont, supra, 148 Cal.App.4th at p. 111.)




                                 33
the Trust’s assets. 21 Accordingly, Adam was well aware of
the ground on which the trustee demurred to the petition and
on which the court based its decision to sustain the demurrer
with leave to amend. (See Schuetram v. Granada Sanitary Dist.
(1964) 229 Cal.App.2d 25, 31 [contention that court erred in
failing to state specific ground for sustaining demurrer was
“frivolous” where demurrer raised only one ground and no
“prejudice resulting from such irregularity” appeared].)
       Finally, in his opposition to the trustee’s demurrer to his
second amended petition, Adam quoted from the court’s Nunc
Pro Tunc order and asserted he had cured the defect by alleging,
“ ‘The sole reason that [O’BRIAN] did not provide for [ROSS] in
his testamentary documents is because [O’BRIAN] was unaware
of [ROSS]’s birth.’ ” Adam, however, never argued he was unable
to cure the defect identified in the trial court’s Nunc Pro Tunc
Order because he received the order too late. And, “because
nothing in the record indicates that [Adam] notified the trial
court of its failure to state reasons . . . , [he] waived this
requirement.” (Lambert v. Carneghi (2008) 158 Cal.App.4th
1120, 1128, fn.4.)
       d.     Adam did not allege a request for relief under
              section 248
       Adam’s contention that he adequately pleaded a claim
under section 248 also is not well-taken. He omitted his earlier
allegations of standing under section 248 from his second


21    The first amended petition refers to section 248 as
providing Adam standing, but Adam’s claim to a share of
the Trust is based only on section 21622.




                                34
amended petition. The operative petition includes no allegations
about section 248; it merely mentions the statute in the title.
Moreover, as the trial court concluded, section 248 is
inapplicable. That statute applies to persons interested in
property that vests in a class of persons who are not identifiable
as persons “embraced in” the description. As the trial court
explained, a “person obtaining an interest in property” under
section 21622 is “readily identifiable and not a class of persons.”
                          DISPOSITION
      The judgments against Kimberly Rallo and Adam Ross
are affirmed. The trustee is to recover her costs on appeal.

      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                     EGERTON, J.

We concur:




             EDMON, P. J.




             LAVIN, J.




                                35
