Filed 6/15/16 Estate of Wegman CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT


Estate of CHARLES PATRICK WEGMAN,
Deceased.

BARBARA ANN ROGERS,                                                                        F071913

         Petitioner and Appellant,                                        (Super. Ct. No. S1501-PB-62164)

                   v.
                                                                                         OPINION
CONNIE WEGMAN, as Administrator, etc.,

         Objector and Respondent.



         APPEAL from a judgment of the Superior Court of Kern County. Ralph W.
Wyatt, Judge.

         Melvin J. Thompson for Petitioner and Appellant.
         Klein, DeNatale, Goldner, Cooper, Rosenlieb & Kimball, Catherine E. Bennett
and Larry L. Fields for Objector and Respondent.
                                                        -ooOoo-




                                          SEE CONCURRING OPINION
                                     INTRODUCTION
       Charles Patrick Wegman died on August 24, 2012, intestate. His daughter, Connie
Wegman,1 petitioned the probate court to be appointed administrator of his estate.
Decedent’s long-time partner, Barbara Ann Rogers, objected. The parties negotiated a
settlement agreement and Rogers agreed to withdraw her objections. Among other
conditions, the parties stipulated to the following: “BARBARA ANN ROGERS will file,
on or before November 4, 2013, a Petition to Determine Right of Ownership of Property.
(Marvin Petition).”2
       Rogers filed her Marvin petition, claiming ownership of certain assets and
property of the estate and seeking compensation for the household services she rendered.
Wegman successfully demurred, arguing the statute of limitations on Rogers’ claims had
expired on August 24, 2013, almost one full month prior to the date the parties negotiated
their settlement agreement. After sustaining a demurrer to Rogers’ amended petition, the
probate court sustained a demurrer to her second amended petition without leave to
amend.
       We are initially presented with whether the parties agreed to waive the statute of
limitations pursuant to their settlement agreement. If so, Rogers argues, estoppel, res
judicata, as well as fraudulent and bad faith conduct by Wegman preclude Wegman from
asserting the statute of limitations as an affirmative defense. In the alternative, Rogers
claims the objections she filed in response to Wegman’s petition to be appointed
administrator constitute the commencement of an action within one year of decedent’s
death, making her claims timely. We find no reasonable probability Rogers’ petition can
be amended, and affirm the judgment.


       1To
         avoid confusion, we refer to Charles Patrick Wegman as decedent and Connie
Wegman as Wegman.
       2Marvin   v. Marvin (1976) 18 Cal.3d 660 (Marvin).


                                              2.
                     FACTUAL AND PROCEDURAL HISTORY
       This case comes before us on a judgment of dismissal after Wegman’s demurrer
was sustained without leave to amend, so we accept as true all facts pled in the complaint,
or in this case, Rogers’ Marvin petition.
       Rogers began living with decedent in June 1992. The couple maintained a long-
term committed relationship, but never married or registered as domestic partners.
       When the couple moved in together, Rogers and decedent orally agreed to take
care of each other for the rest of their lives. In reliance on this promise, Rogers quit her
job and began taking care of their home. During the course of their relationship, the
couple acquired real and personal property together, including a home in Wasco, two
businesses, multiple vehicles, and household furniture. Although title to the property was
held in decedent’s name alone, the property was purchased and maintained with funds
and efforts from both Rogers and decedent.
       Decedent died intestate on August 24, 2012. After his death, Wegman petitioned
the probate court to be appointed administrator of her father’s estate. Rogers filed
objections to Wegman’s petition, asserting Wegman was not suited to serve as
administrator of the estate.
       On September 19, 2013, the date the matter was set for trial, the parties negotiated
a settlement agreement subsequently approved by the probate court and made a part of
the order for probate. The agreement provides the following:

              “The objections of BARBARA ANN ROGERS are withdrawn
       conditional upon following:

               “1. BARBARA ANN ROGERS is to continue to reside and occupy
       the residence and property located at 1322 and 1324 Griffith Avenue,
       Wasco, California 93280 (hereinafter ‘PROPERTY’) until a determination
       is made on her claim for ownership of PROPERTY, subject to her payment
       of the taxes and insurance for the time she resides there. (Marvin Petition)




                                              3.
              “2. The lock to the Poso Drive South gate to the PROPERTY shall
       be replaced with a lock that may be opened by both the estate and
       BARBARA ANN ROGERS and both [Wegman] and BARBARA ANN
       ROGERS shall be provided with a key or combination to any lock placed
       on the gate.

              “3. BARBARA ANN ROGERS will file, on or before November 4,
       2013, a Petition to Determine Right of Ownership of Property. (Marvin
       Petition).

              “4. At a mutually agreed date, [Wegman] shall be permitted to
       remove her lawn maintenance equipment from the shop and BARBARA
       ANN ROGERS shall be permitted to remove her 1964 Nova automobile
       and children’s bicycles and toys. Neither party will remove any additional
       property from the shop without the prior written consent of the other party.”
       On November 4, 2013, Rogers filed a “Petition to Enforce Agreement for
Ownership of Real and Personal Property and for Damages,” referred to by the parties as
a Marvin petition based on the gravamen of Rogers’ claims. In Marvin, our Supreme
Court held express or implied contracts between nonmarital cohabitants could be
enforced. (Marvin, supra, 18 Cal.3d at pp. 670-671.) Such contracts may arise from an
oral agreement between partners to combine their efforts and earnings and share equally
all property accumulated during the relationship, or to compensate one of the partners for
homemaking services provided. Marvin agreements are enforceable against an estate
when one of the parties to the agreement dies (Byrne v. Laura (1997) 52 Cal.App.4th
1054, 1064), and typically manifest in probate cases from the deceased partner’s failure
to make a will or a testamentary disposition. (Allen v. Stoddard (2013) 212 Cal.App.4th
807, 812.)
       Wegman, as the administrator of the estate, successfully demurred to Rogers’
Marvin petition. The probate court held that because Rogers’ petition was filed more
than one year after decedent’s death, her claims were time-barred by the statute of
limitations.




                                            4.
      On October 6, 2014, Rogers filed an amended petition. Her amended petition
asserted Wegman waived the statute of limitations based on the following stipulation in
the parties’ September 19th settlement agreement: “BARBARA ANN ROGERS will
file, on or before November 4, 2013, a Petition to Determine Right of Ownership of
Property. (Marvin Petition).” As a result of this stipulation, Rogers argued Wegman was
estopped from asserting her claims were time-barred.
      Wegman demurred. The demurrer did not directly address Rogers’ argument that
a waiver was executed, but it did reassert Rogers’ claims were time-barred. Wegman
also argued equitable estoppel did not apply because Wegman did not induce Rogers to
forgo timely filing her claims—the statutory filing period on Rogers’ claims had already
run when the parties negotiated their agreement.
      The probate court sustained the demurrer.
      On April 23, 2015, Rogers filed a second amended petition. She argued waiver
and res judicata precluded Wegman from asserting the statute of limitations.
      Wegman demurred a third and final time. She contended the stipulation requiring
Rogers to file her Marvin petition by November 4th was not intended to constitute a
waiver, it was merely intended to expedite litigation. Wegman also reasserted her
argument that equitable estoppel did not apply.
      On April 27, 2015, the probate court sustained Wegman’s demurrer without leave
to amend. The court held equitable estoppel did not apply because Rogers’ petition failed
to allege Wegman induced Rogers into forbearing to file suit within the one-year statute
of limitations applicable to her claims. In addition, the court found no waiver based on
the parties’ settlement agreement.
      On September 24, 2015, the trial court entered notice of entry of judgment in favor
of Wegman, sustaining the demurrer without leave to amend and dismissing Rogers’
second amended Marvin petition.



                                            5.
                                           ANALYSIS
A.     Standard of review
       We conduct a de novo review of a trial court’s order sustaining a demurrer without
leave to amend. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108
Cal.App.4th 1028, 1038.) A trial court abuses its discretion if the plaintiff makes a
showing the pleading can be amended to overcome the pleading defects. (City of
Stockton v. Superior Court (2007) 42 Cal.4th 730, 746.) This issue is reviewable on
appeal even in the absence of a request for leave to amend. (Code Civ. Proc.,3 § 472c;
Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 550.)
       Where there is a reasonable possibility a plaintiff can amend to cure a defective
pleading, we must reverse the judgment of dismissal and direct the trial court to vacate its
order sustaining the defendant’s demurrer without leave and to enter a new order
sustaining the demurrer with leave to amend. (Kong v. City of Hawaiian Gardens
Redevelopment Agency, supra, 108 Cal.App.4th at pp. 1047–1048.) However, where the
trial court has not abused its discretion, we will affirm the judgment. (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) This standard of review applies to a probate court’s order
sustaining a demurrer to a petition without leave to amend.
B.     Rogers’ Marvin petition was subject to a one-year statute of limitations
       As a preliminary matter, the parties do not dispute Rogers’ claims are subject to a
one-year statute of limitations. Pursuant to section 366.3, a party seeking to assert a
claim against an estate based on promises to make a distribution of property or assets of
the estate after death has one year from the date of the decedent’s death to file suit.
Similarly, section 366.2 governs claims for debts owed by a decedent, and also provides
claimants with a one-year filing period, beginning from the date of the decedent’s death.


       3All   undefined statutory citations are to the Code of Civil Procedure unless otherwise
indicated.


                                                 6.
       Rogers alleged three causes of action in her Marvin petition: (1) joint or co-
ownership of assets of the estate based on a promise between the parties to take care of
one another, and acquisition of assets from joint “time, efforts, talents and incomes”; (2)
the confidential relationship between Rogers and decedent required the court to impose a
constructive trust over assets the couple jointly acquired and maintained; and, (3)
compensation for homemaking services Rogers rendered to decedent.
       Rogers’ first and second causes of action are claims against the estate as a result of
decedent’s failure to make a will or a distribution of property upon his death. Assuming
decedent and Rogers jointly owned assets and property held only in decedent’s name, any
agreement to transfer property to Rogers upon decedent’s death could only be performed
by a will, or by a personal representative of his estate conveying property otherwise
belonging to the estate. (Estate of Ziegler (2010) 187 Cal.App.4th 1357, 1365.) These
claims are governed by the one-year statute of limitations pursuant to section 366.3.
       Rogers’ third claim alleges a debt owed by decedent for homemaking services she
rendered. Similar to her first two claims, this is a classic Marvin claim. In Marvin,
supra, 18 Cal.3d at page 684, our Supreme Court held an unmarried cohabitating partner
may recover in quantum meruit for the reasonable value of household services rendered
minus the reasonable value of support received if it can be shown services were rendered
with an expectation of monetary reward. However, unlike Rogers’ first two claims,
where statutory liability only came into existence upon decedent’s death, her third claim
could have been brought against decedent had he lived. (Estate of Ziegler, supra, 187
Cal.App.4th at pp. 1366-1367 [quantum meruit theory of recovery based on value of
food, services, and companionship could have been brought during decedent’s lifetime];
(Bradley v. Breen (1999) 73 Cal.App.4th 798, 800 [“(section 366.2) governs causes of
action against a decedent that existed at the time of death, ‘whether accrued or not
accrued’”].) Rogers’ third claim is, therefore, governed by the one-year statute of
limitations under section 366.2.

                                             7.
       Decedent died on August 24, 2012. On November 4, 2013, more than one year
later, Rogers filed her Marvin petition. Wegman demurred, arguing Rogers’ claims were
time-barred. The trial court agreed and sustained her demurrer.
       To survive demurrer, Rogers’ petition must allege sufficient facts that, accepted as
true, state a claim to relief that is plausible on its face. Even accepting the facts pled in
Rogers’ petition as true, her claims are plainly time-barred. Moreover, for the reasons set
forth below, Rogers failed to demonstrate a reasonable probability her petition can be
amended to overcome this defect.
C.     The statute of limitations was not waived
       Rogers first argues on appeal that Wegman was estopped from asserting the statute
of limitations based on the September 19th settlement agreement. Her argument is based
on the third stipulation in the parties’ agreement (Stipulation No. 3), which provides the
following: “BARBARA ANN ROGERS will file, on or before November 4, 2013, a
Petition to Determine Right of Ownership of Property. (Marvin Petition).” Rogers
contends this stipulation constitutes an agreement by Wegman to waive the statute of
limitations, provided Rogers filed her Marvin petition by November 4, 2013.
       According to Wegman, neither the stipulation nor the settlement agreement waive
her right to assert affirmative defenses. Stipulation No. 3 was intended only to expedite
administration of the estate by requiring Rogers to file her petition by a specified date.
We agree with Wegman and find no waiver.
       Because the parties dispute the meaning of language in a contract, we apply the
well-settled rules of contract interpretation. In so doing, we determine whether the
disputed language is reasonably susceptible to two or more reasonable interpretations.
(Badie v. Bank of America (1998) 67 Cal.App.4th 779, 798.) Whether language is
reasonably susceptible to multiple interpretations is determined by examining the
disputed language in the context of the contract as a whole, and by extrinsic evidence of



                                               8.
the parties’ intent, such as the circumstances surrounding the agreement. (Ibid.) If a
contract is susceptible to multiple interpretations, it is ambiguous and must be construed
to give effect to the mutual intent of the parties. (Ibid.) Where a contract is
unambiguous, the mutual intent of the parties is inferred from the plain language of the
agreement. (Mount Vernon Fire Ins. Co. v. Busby (2013) 219 Cal.App.4th 876, 882.)
       Here, the stipulation at issue provides: “BARBARA ANN ROGERS will file, on
or before November 4, 2013, a Petition to Determine Right of Ownership of Property.
(Marvin Petition).” (Italics added.) We interpret Stipulation No. 3 to mean only the date
Rogers agreed to file her Marvin petition and not an agreement to waive the statute of
limitations.
       Waiver requires clear and convincing evidence of the intentional relinquishment of
a known right. (Stewart v. Seward (2007) 148 Cal.App.4th 1513, 1524.) Nothing within
the settlement agreement or the circumstances surrounding the agreement evidence an
intent by Wegman to waive the statute of limitations.
       Rogers fails to allege the parties ever discussed the statute of limitations prior to
the filing of her Marvin petition, or that any promises or assurances were made by
Wegman to refrain from asserting the defense. Further, no other provision within the
agreement makes reference to a waiver. These other provisions relate only to Rogers’
agreement to pay property taxes and insurance on the Wasco property until her Marvin
claims were decided, the replacement of a lock on the property to make the property
accessible to both parties, and the parties’ agreement to allow each other to remove
various items of personal property belonging to them, stored in a shop presumably owned
by the estate.
       Because neither the settlement agreement nor the circumstances surrounding the
settlement agreement evidence a waiver, we infer the parties’ mutual intent based on the
plain language of the challenged stipulation. Because Stipulation No. 3 is clear and
unambiguous, we would have to read language into the stipulation to find a waiver. We

                                              9.
decline to do so. “‘“Courts will not adopt a strained or absurd interpretation in order to
create an ambiguity where none exists.”’” (Mount Vernon Fire Ins. Co. v. Busby, supra,
219 Cal.App.4th at p. 882.)
       Rogers asserts a waiver may be inferred based on what is not stated in the
settlement agreement—a reservation of the right to assert affirmative defenses. A party is
not required to reserve the right to assert affirmative defenses. Rather, the inverse is
true—a party must expressly waive this right. (Stewart v. Seward, supra, 148
Cal.App.4th at p. 1524.)
       Rogers also argues we should find Stipulation No. 3 was intended to constitute a
waiver based on the nature of the parties’ settlement agreement. She contends the only
reason she withdrew her objections to Wegman’s petition was her understanding
Wegman would not object to her Marvin petition. We are unpersuaded by this argument
for two reasons.
       First, in her brief, Rogers admits other benefits inured to her in agreeing to
withdraw her objections. Wegman agreed to permit Rogers to continue living in the
Wasco property until the court resolved Rogers’ claim to ownership of the property,
provided Rogers paid property taxes and insurance for the home in the interim.
Accordingly, we cannot infer Rogers only signed the settlement agreement because
Wegman agreed to waive the statute of limitations.
       Second, there is no evidence Rogers was even aware her claims were time-barred
at the time the settlement agreement was negotiated. Rogers filed her Marvin petition
with the court on November 4, 2013. She made no reference to an alleged waiver in her
petition, even though her petition was filed months after the statute of limitations on her
claims had run and her petition would have been time-barred on its face. Indeed, it
appears the first time Rogers even addressed the statute of limitations was in response to
Wegman’s demurrer. We presume, had Stipulation No. 3 been intended to be construed



                                             10.
as a waiver, the stipulation would have included language to that effect, or Rogers would
have made this clear in her Marvin petition.
         Rogers also contends the formality of the settlement agreement, the
correspondence between counsel for the parties, and the fact that in filing the agreement
with the court, counsel for the parties certified all factual contentions therein had
evidentiary support confirmed a valid waiver was executed. Her argument misses the
point.
         The issue is not whether the settlement agreement is valid, but whether the
substance of the agreement constitutes a waiver of the statute of limitations. Rogers’
discussion of the legitimacy and formality of the agreement essentially presumes
Stipulation No. 3 constitutes a waiver in the first place. We disagree with this
conclusion.
         Further, while correspondence between counsel demonstrates the parties’ mutual
intent to fulfill their obligations as set forth in the agreement, it does not support the
conclusion the statute of limitations was waived. The correspondence Rogers refers to
consists of two letters from Wegman’s counsel to Rogers’ counsel dated May 23, 2014,
and May 28, 2014. In the letters, Wegman’s counsel advises Rogers’ counsel property
taxes for the Wasco property are past due, and Rogers must pay the full amount as soon
as possible. These letters refer to the first condition in the settlement agreement, wherein
the parties agreed Rogers could continue living in the Wasco property until her Marvin
petition was decided by the court, provided Rogers paid property taxes and insurance for
the property. These letters do not evidence a waiver or even an intent by the parties to
execute a waiver.
         Finally, Rogers contends by filing the settlement agreement with the court, she
certified all factual contentions in the agreement have evidentiary support (§ 128.7).
Stipulation No. 3 is a condition, not a factual contention. In any event, we fail to see how



                                              11.
certifying that all factual contentions have evidentiary support transforms a condition to
be performed by Rogers into a waiver.
       We find no evidence in the parties’ settlement agreement or in the circumstances
surrounding the negotiation and execution of the agreement demonstrating an intent by
the parties to waive the statute of limitations. Based on the plain language of Stipulation
No. 3, we conclude Wegman did not agree to waive her right to assert the defense.4
       1.     Res judicata/collateral estoppel do not apply
       Rogers contends res judicata prohibits Wegman from asserting the statute of
limitations. Wegman asserts Rogers failed to allege sufficient facts to establish res
judicata, and adds Rogers appears to be arguing collateral estoppel applies. We conclude
neither res judicata nor collateral estoppel apply.
       “Res judicata, or claim preclusion, prevents relitigation of the same cause of action
in a second suit between the same parties or parties in privity with them. Collateral
estoppel, or issue preclusion, ‘precludes relitigation of issues argued and decided in prior
proceedings.’” (Mycogen Corp. v. Monsanto Co (2002) 28 Cal.4th 888, 896.) These
doctrines apply only where there has been a final judgment on the merits. (Ibid.; Lucido
v. Superior Court (1990) 51 Cal.3d 335, 361 (dis. opn. of Broussard, J.).)
       Rogers relies on Estate of Redfield (2011) 193 Cal.App.4th 1526 (Redfield) in
support of her argument that Wegman was precluded from asserting the statute of
limitations under the doctrine of res judicata. However, the issue in Redfield was whether


       4Importantly,   neither Rogers nor the probate court addressed whether a waiver of the
statute of limitations may resuscitate a time-barred claim against an estate where a creditor’s
claim must be filed. Creditor’s claims—which must be filed prior to filing an action against an
estate where a claimant makes a demand for repayment of money—cannot be revived once they
are time-barred, nor can they be tolled. (Prob. Code, §§ 9100, 9351.) Wegman contends Rogers
was required to file a creditor’s claim pursuant to her third claim, because it is a demand for
repayment. Rogers did not assert her claim for repayment in any manner until she filed her
Marvin petition on November 4, 2013. Although we find no waiver occurred in the first place
and do not reach this issue as a result, we doubt Rogers’ third claim could be resuscitated.


                                              12.
a final, unappealed order approving settlement of a will contest could subsequently be
modified. (Id. at pp. 1528-1529.) As the appellate court observed: “Application of the
doctrine of res judicata requires an affirmative answer to the following three questions:
(1) Was there a final judgment on the merits? (2) Was the issue decided in the prior
adjudication identical with the one presented in the subsequent litigation? (3) Was the
party against whom the principle is invoked a party … to the prior adjudication?” (Id. at
p. 1534.)
       Here, while the September 19th settlement agreement is a final judgment, the issue
of whether the agreement contains a waiver of the statute of limitations is currently
before us (for the first time) on appeal. As a result, neither the issue nor the claim Rogers
raises has yet acquired the finality necessary to be given preclusive effect. “‘A judgment
or order may be final in nature, but it does not become res judicata until it is final in the
other sense of being free from direct attack. Hence, while an appeal is pending or, though
no appeal has yet been taken, the time for appeal has not expired, the judgment is not
conclusive.’” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 532.) Thus, res
judicata and collateral estoppel do not apply.
       2.     Equitable estoppel does not apply
       Initially, it is unclear what theory of estoppel Rogers’ argues applies here. In part
I of her brief, Rogers claims Wegman is estopped from asserting the statute of limitations
by virtue of the express language of Stipulation No. 3. In part VI of her brief, she asserts
Wegman is estopped from asserting the defense based on fraud and bad faith conduct by
Wegman.
       Wegman contends Rogers appears to assert two theories of estoppel, one based on
the plain language of the stipulation, and the other based on alleged fraud or bad faith,
which appears to allege equitable estoppel. Rogers disagrees with this interpretation, but
fails to clarify her argument in her reply brief: “The estoppel asserted by [Rogers] is not



                                              13.
an equitable estoppel as claimed by [Wegman] and all of the arguments advanced by
[Wegman] on those grounds are simply inapplicable.”
       In our view, Rogers advances only one theory of estoppel. Her first claim is based
on the theory Stipulation No. 3 constituted a waiver and, as a result, Wegman was
precluded from asserting the statute of limitations. Rather than arguing estoppel, this
theory appears to allege Wegman breached the settlement agreement. We addressed this
argument in part C.1, ante, and concluded the settlement agreement did not contain a
waiver.
       Contrary to Rogers’ statement in her reply brief, her second theory does, indeed,
appear to allege equitable estoppel: Rogers claims Wegman fraudulently induced her
into withdrawing her opposition to Wegman’s petition to be appointed administrator by
promising not to challenge Rogers’ Marvin petition.5 We conclude equitable estoppel
does not apply, and additionally find insufficient evidence of bad faith or fraudulent
conduct by Wegman.
       Equitable estoppel can be invoked when a delay in timely filing suit is caused by
the defendant’s conduct. For example, in Battuello v. Battuello (1998) 64 Cal.App.4th
842 (Battuello), the appellant filed a complaint against his mother and his deceased
father’s estate to establish an interest in a vineyard his father had promised to give him.
(Id. at p. 844.) During settlement negotiations, the appellant’s mother promised the
appellant he would receive title to the vineyard on a specified date. (Id. at p. 845.) In
reliance on her promise, the appellant refrained from objecting when his mother filed a
petition to confirm title to the vineyard in her trust. (Id. at p. 846.) After the statutory
period for filing a claim to title had passed, the appellant’s mother repudiated the


       5At  oral argument, counsel for Rogers reasserted that he was not arguing a theory of
equitable estoppel. However, we can conceive of no other equitable doctrine permitting Rogers
to obtain relief based on allegations of bad faith and fraudulent conduct by Wegman. Thus, we
address equitable estoppel.


                                              14.
settlement agreement. (Id. at pp. 845-846.) The appellant filed suit against the estate
seeking to enforce his father’s promise, but the trial court sustained the demurrer, finding
his claim was time-barred. (Ibid.)
       The appellate court held even though the statute of limitations had run, the
appellant’s mother was equitably estopped from asserting the defense. (Battuello, supra,
64 Cal.App.4th at p. 848.) In forgoing the timely filing of his complaint, the appellant
relied on his mother’s promise that he would receive title to the vineyard. (Ibid.) The
appellate court explained this reliance estopped his mother from asserting the statute of
limitations.
       Here, unlike Battuello, the parties’ settlement agreement was executed almost one
full month after the statute of limitations had already expired. Rogers’ amended petition
fails to allege Wegman’s conduct induced her to forbear from timely filing her petition,
i.e., filing her Marvin petition between August 24, 2012, and August 24, 2013. The
doctrine of equitable estoppel applies after the limitations period has run to preclude a
party from asserting the statute of limitations as a defense to an untimely action where the
party’s conduct has induced another into forbearing to file suit. (McMackin v. Ehrheart
(2011) 194 Cal.App.4th 128, 142.) Even assuming Wegman had induced Rogers into
dropping her objections by expressly promising she would not assert the statute of
limitations, Wegman did not induce Rogers to forbear from timely filing her claims.
Consequently, equitable estoppel does not apply.
       We also find no evidence of fraudulent conduct or bad faith by Wegman. To the
extent Wegman was aware the statute of limitations had run on Rogers’ claims, we find
no authority requiring Wegman to refrain from engaging in settlement negotiations on
this basis, provided Wegman or her counsel made no affirmative misrepresentations. We
also observe attorneys have no duty to disclose to the opposing party weaknesses in the
client’s case, including the expiration of the statute of limitations. (In re Complex
Asbestos Litigation (1991) 232 Cal.App.3d 572, 588 [“courts have recognized repeatedly

                                             15.
that attorneys owe no duty of care to adversaries in litigation”].) The client’s attorney is
ordinarily charged with such knowledge, at least where there has been no fraudulent
concealment of facts triggering the statute of limitations. Indeed, it is well-settled that
failing to timely file a client’s claim may even be a basis for malpractice. (See Gailing v.
Rose, Klein & Marias (1996) 43 Cal.App.4th 1570.)
       Rogers has failed to show Wegman induced her to forbear from timely filing her
claims. Thus, equitable estoppel did not preclude Wegman from asserting the statute of
limitations as an affirmative defense.
D.     Rogers’ objections do not constitute the filing of a claim
       Rogers asserts the objections she filed on February 22, 2013, to Wegman’s
petition to be appointed administrator actually constituted the filing of a claim or action
against the estate within the meaning of sections 366.2 and 366.3. She contends although
her pleading was entitled “objections,” the language of the pleading contains a clear
claim of ownership interest in the estate and assets of the decedent. We conclude Rogers’
objections do not constitute an action to enforce her claims to distribution of property, or
a demand for payment for services rendered.6




       6Wegman     contends Rogers’ theory appears to imply Rogers’ Marvin petition is timely
filed based on equitable tolling and the relation-back doctrine. Rogers did not raise these
theories in her brief. Assuming Rogers had, we note her Marvin petition does not “relate back”
to her objections because her objections do not constitute an earlier, timely filed complaint.
Further, we find no applicable basis for equitable tolling under the specific enumerated
circumstances set forth in section 366.2, subdivision (b) including: “(1) Sections 12, 12a, and
12b of this code. [¶] (2) Part 4 (commencing with Section 9000) of Division 7 of the Probate
Code (creditor claims in administration of estates of decedents). [¶] (3) Part 8 (commencing with
Section 19000) of Division 9 of the Probate Code (payment of claims, debts, and expenses from
revocable trust of deceased settlor). [¶] (4) Former Part 3 (commencing with Section 21300) of
Division 11 of the Probate Code (no contest clauses), as that part read prior to its repeal by
Chapter 174 of the Statutes of 2008.” Section 366.3 provides for virtually no tolling at all,
except when the last day for the performance of an act falls on a holiday, and for no contest
clauses, neither of which are applicable here.


                                              16.
       The purpose of the objections filed by Rogers was to contest Wegman’s petition to
be appointed administrator of decedent’s estate. Conversely, the purpose of her Marvin
petition was to enforce an agreement for ownership of real and personal property. The
objections do not state facts sufficient to constitute a cause of action, nor do they seek to
enforce an express or implied promise by two nonmarital partners as Rogers’ Marvin
claims do. We, therefore, reject Rogers’ assertion her objections constituted the
commencement of an action within the meaning of sections 366.2 and 366.3.
       Rogers has failed to demonstrate a reasonable likelihood her petition can be
amended in light of the time-barred status of her claims. The probate court did not abuse
its discretion in denying Rogers leave to amend her petition.
                                      DISPOSITION
       The judgment is affirmed. Each party shall bear her own costs on appeal.


                                                          ___________________________
                                                                              PEÑA, J.
I CONCUR:


 __________________________
SMITH, J.




                                             17.
GOMES, J., Concurring.
       I concur in the judgment. “ ‘ The abuse-of-discretion standard requires us to
uphold a ruling which a reasonable judge might have made, even though we would not
have ruled the same and a contrary ruling would also be sustainable. We cannot
substitute our own judgment.’ ” (Harman v. City and County of San Francisco (2007)
158 Cal.App.4th 407, 428.)
       I write separately to express my displeasure with the state of our profession.
Respondent’s counsel has been smug in candidly admitting that respondent was well
aware the statute of limitations had run when the negotiated stipulation and order
withdrawing objections to the appointment of administrator took place. Though not
meeting the legal requirements for waiver, it is clear to me appellant did not receive the
benefit of her bargain when ordered to file her Marvin claim on or before November 4,
2014, in exchange for withdrawing her objections.
       It is incumbent upon trial courts to make certain parties entering into a stipulation
in writing and in open court understand all the terms of that stipulation, and are not
misled. Either the trial court failed at the task, or was itself misled in a de facto
fraudulent manner.

                                                           ___________________________
                                                                     GOMES, Acting P.J.
