Beverly v. Riverside County Public Administrator CA4/2

Filed 3/10/22 Beverly v. Riverside County Public Administrator CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

BRALA BEVERLY,

Plaintiff and Appellant, E077038

v. (Super.Ct.No. RIC2000782)

RIVERSIDE COUNTY PUBLIC OPINION
ADMINISTRATOR et al.,

Defendants and Respondents.

APPEAL from the Superior Court of Riverside County. L. Jackson Lucky, IV,

Judge. Affirmed.

Brala Beverly, in pro. per, for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, James C. Packer; Law Office of Hershel A.

Martin, Hershel A. Martin; Arias & Lockwood and Christopher D. Lockwood for

Defendant and Respondent, County of Riverside.

Fullerton, Lemann, Schaefer & Dominick and David P. Colella for Defendant and

Respondent, Kathleen Bertulli.

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 I. INTRODUCTION

The Riverside County public administrator was appointed to administer the estate

of Albert John Rinaldo (decedent). In January 2020, Brala Beverly (plaintiff) appealed

from the order appointing the public administrator. While her appeal was pending, the

public administrator took action to evict plaintiff from decedent’s mobile home and

denied three creditor’s claims filed by plaintiff pursuant to Probate Code1 section 9000 et

seq.

In response, plaintiff filed a civil complaint seeking damages against the public

administrator and several of decedent’s family members, including decedent’s sister,

Kathleen Bertulli (Bertulli), under various theories of liability. The trial court sustained

demurrers to a first amended complaint and second amended complaint, but it granted

plaintiff leave to amend on each occasion. Finally, on March 9, 2021, the trial court

sustained the County’s demurrer to plaintiff’s third amended complaint without leave to

amend; and, on March 23, the trial court sustained Bertulli’s demurrer to plaintiff’s third

amended complaint without leave to amend.

Plaintiff appeals from the judgments following the sustaining of defendants’

demurrers. Based upon our independent review of the third amended complaint, we find

no error warranting reversal, and we affirm the judgment.

1 Undesignated statutory references are to the Probate Code.

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 II. FACTS AND PROCEDURAL HISTORY

A. Background

Plaintiff, claiming to be a friend, the beneficiary of a purported will, or

alternatively a creditor, initiated a probate action seeking authority to administer

decedent’s estate. In response, the trial court appointed the Riverside County Public

Administrator to administer the estate, and plaintiff appealed from that order in January

2020.

On February 21, 2020, before briefing in her appeal commenced, plaintiff filed a

new civil action naming the County of Riverside (County)2 and Bertulli as defendants.

On February 25, plaintiff filed a first amended complaint seeking damages as the result of

defendants’ alleged tortious conduct, as well as alleged violations of California statutes

and the United States Constitution. The trial court sustained a demurrer to the first

amended complaint but granted leave to amend, and plaintiff filed a second amended

complaint on September 28.

On November 5, 2020, this court issued an opinion affirming the trial court’s order

appointing the public administrator in plaintiff’s separate, pending appeal. However,

because plaintiff subsequently petitioned the California Supreme Court for review, the

2 Plaintiff did not personally name the public administrator but instead sued the
official’s office, naming “Riverside County Public Administrator” as the defendant.
Generally, a suit against a government official acting in his or her official capacity “is not
a suit against the official but rather is a suit against the official’s office” and “is, in all
respects other than name, to be treated as a suit against the entity.” (Pitts v. County of
Kern (1998) 17 Cal.4th 340, 350.) Accordingly, the County responded as the proper
defendant “erroneously sued and served as Riverside County Public Administrator.”

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remittitur was not issued until February 11, 2021. On December 3, the trial court

sustained a demurrer to the second amended complaint but again granted leave to amend,

and plaintiff filed a third amended complaint on December 28.

B. Allegations of the Third Amended Complaint

According to the third amended complaint, plaintiff initiated a probate proceeding

involving the estate of decedent following his death. Prior to decedent’s death, he had

given plaintiff permission to access his mobile home located in Homeland, California

(the Property). With respect to the Property, plaintiff assisted decedent with making

repairs and improvements, as well as making two mortgage payments to avoid

foreclosure. In exchange, plaintiff contends decedent made her a beneficiary in a

purported will.

Following decedent’s death, his relatives, including Bertulli, were “nowhere to be

found”; declined to administer his estate; and declined to appear in the subsequent

probate proceedings. As a result, the trial court appointed the public administrator to

administer decedent’s estate. Plaintiff alleges the public administrator thereafter

wrongfully evicted her from the Property, sold the property for less than market value,

and rejected three creditor’s claims that plaintiff filed in the probate proceedings.

Based upon these allegations, plaintiff purported to state causes of action for

(1) violation of California Code of Civil Procedure section 1708; (2) violation of the

Fourth Amendment of the United States Constitution; (3) violation of the Fourteenth

Amendment of the United States Constitution; (4) “common counts”; (5) violation of

Code of Civil Procedure 366.2; (6) violation of Code of Civil Procedure section 708.210;

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(7) violation of Code of Civil Procedure section 22; (8) negligence; and (9) violation of

the First Amendment of the United States Constitution. She named several relatives,

including Bertulli, as defendants in her claims for “common counts,” negligence, and

violations of Code of Civil Procedure sections 366.2, 708.210, and 22. With respect to

all of these causes of action, plaintiff requested an award of “general, special,

compensatory and punitive damages,” as a result of defendants’ tortious acts in evicting

her from the Property and denying her creditor’s claims.

C. Demurrers, Ruling, and Judgment

On January 28, 2021, Bertulli filed a demurrer to the third amended complaint,

arguing that it failed to state any viable cause of action against her. On January 29, the

County filed its own demurrer arguing that the third amended complaint failed to state a

cause of action; some of plaintiff’s claims were barred by collateral estoppel; and it was

entitled to immunity.

On March 9 and 23, 2021, the trial court held hearings on the County’s and

Bertulli’s demurrers, during which all parties appeared and presented oral argument.

Reporter’s transcripts of the hearings were not made part of the record on appeal. The

trial court sustained the demurrers, without leave to amend. Judgments were entered in

favor of both defendants, and plaintiff appeals from these judgments.

III. DISCUSSION

A. General Legal Principles and Standard of Review

“A demurrer tests the legal sufficiency of factual allegations in a complaint.

[Citation.] In reviewing the sufficiency of a complaint against a general demurrer, [the]

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court treats the demurrer as admitting all material facts properly pleaded, but not

contentions, deductions, or conclusions of fact or law.” (Rakestraw v. California

Physicians’ Service (2000) 81 Cal.App.4th 39, 42-43.)

A court of appeal “applies two separate standards of review on appeal from a

judgment of dismissal after a demurrer is sustained without leave to amend. [Citation.]

We first review the complaint de novo to determine whether the complaint alleges facts

sufficient to state a cause of action under any legal theory or to determine whether the

trial court erroneously sustained the demurrer as a matter of law.” (Aguilera v. Heiman

(2009) 174 Cal.App.4th 590, 595 (Aguilera).) When conducting our de novo review,

“[i]f a complaint is insufficient on any ground specified in a demurrer, the order

sustaining the demurrer must be upheld even though the particular ground upon which

the court sustained it may be untenable.” (Stearn v. County of San Bernardino (2009)

170 Cal.App.4th 434, 440; see Webb v. City of Riverside (2018) 23 Cal.App.5th 244,

251.)

“Second, we determine whether the trial court abused its discretion by sustaining

the demurrer without leave to amend. [Citation.] . . . An abuse of discretion is

established when ‘there is a reasonable possibility the plaintiff could cure the defect with

an amendment.’ ” (Aguilera, supra, 174 Cal.App.4th at p. 595.) “The burden of proving

such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985)

39 Cal.3d 311, 318.)

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B. The Trial Court Did Not Err in Concluding Plaintiff Failed To State a Cause of

Action

1. We are Not Bound by Plaintiff's Characterization of Her Claims

Here, the third amended complaint purports to state nine “cause[s] of action.”

However, as we explain, at least three of those purported causes of action are based upon

statutes that simply cannot be interpreted as giving rise to independent claims.

“In reviewing the trial court’s ruling on a demurrer, we are not bound by the label

attached to a cause of action by the pleader; rather, we examine the factual allegations to

determine whether a cause of action is (or can be) stated on any available legal theory.”

(North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 786.)

“ ‘The courts of this state have . . . long since departed from holding a plaintiff strictly to

the “form of action” he has pleaded and instead have adopted a more flexible approach of

examining the facts alleged to determine if a demurrer should be sustained.’ ”

(Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.) Thus, “[w]e

ignore erroneous or confusing labels in the pleading and look to its gravamen to

determine what cause of action is stated.” (Navarrete v. Meyer (2015) 237 Cal.App.4th

1276, 1283.)

The first cause of action purports to state a claim based upon a violation of “Code

of Civil Procedure” section 1708. There is no such provision in the Code of Civil

Procedure. To the extent plaintiff intended to cite Civil Code section 1708, that provision

provides: “Every person is bound, without contract, to abstain from injuring the person

or property of another, or infringing upon any of his or her rights.” However, this statute

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“states only a general principle of law” and does not create an independent cause of

action. (Ley v. State of California (2004) 114 Cal.App.4th 1297, 1306.)

More importantly, this purported cause of action is premised upon the allegation

that the public administrator engaged in a seizure of plaintiff’s assets without proper

notice, and these facts are identical to those alleged in the second and third causes of

action for violation of plaintiff’s constitutional rights. To the extent plaintiff is seeking to

invoke Civil Code section 1708 to obtain damages for an alleged constitutional violation,

the California Supreme Court has explicitly held that the statute does not support

recognition of an independent action for damages in this context. (See Katzberg v.

Regents of University of California (2002) 29 Cal.4th 300, 327-328 [statute does not

afford plaintiff a damages action to remedy asserted violation of his due process rights];

Degrassi v. Cook (2002) 29 Cal.4th 333, 342-343 [statute does “not support recognition

of a constitutional tort action for damages”].) Thus, the purported first cause of action

does not set forth an independent basis of liability. It is merely a reiteration of the second

and third causes of action and does not need to be considered separately from those

claims.

The fifth cause of action consists of nothing other than a citation to Code of Civil

Procedure section 366.2, which sets forth the statute of limitations for bringing a claim

against a decedent’s estate. (Code Civ. Proc., § 366.2) There are no independent factual

allegations suggesting what act or omission forms the basis of this claim.

The seventh cause of action consists of nothing other than a citation to Code of

Civil Procedure section 22, which sets forth the definition of the term “action.” (Code

8
Civ. Proc., § 22.) Again, there are no independent, factual allegations suggesting what

act or omission forms the basis of this claim.

Thus, despite plaintiff’s attempt to style three independent causes of action based

upon these statutes, these statutes set forth no independent legal duty that could form the

basis of a cause of action and will be disregarded. (Citizens for a Responsible Caltrans

Decision v. Department of Transportation (2020) 46 Cal.App.5th 1103, 1116 [On appeal

following the sustaining of a demurrer, the Court of Appeal “must disregard allegations

that are contrary to law . . . .”].) At best, we believe the third amended complaint can

only be read to state six, plausible claims for recovery: (1) a claim for violation of the

Fourth Amendment; (2) a claim for violation of the Fourteenth Amendment; (3) a

“common counts” claim; (4) a judgment creditor action (Code Civ. Proc., § 708.210);

(5) a claim for negligence; and (6) a claim for violation of the First Amendment.

2. We Grant the County’s Request for Judicial Notice

Additionally, before proceeding to examine the factual allegations of the third

amended complaint, we address the County’s request for judicial notice. On

August 19, 2021, the County requested we take judicial notice of (1) the register of

actions from the probate proceeding related to the administration of decedent’s estate in

Riverside County Superior Court Case No. PRMC1901063, and (2) this court’s opinion

in plaintiff’s appeal from the order appointing the public administrator in that action

(Estate of Rinaldo, supra, E074575). We reserved ruling on the request to be considered

with the merits of this appeal and, for the reasons set forth below, we grant the request.

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 “In addition to the facts actually pleaded, the court considers facts of which it may

or must take judicial notice” when ruling on a demurrer. (Rodas v. Spiegel (2001)

87 Cal.App.4th 513, 517.) This is because “a demurrer may be sustained where judicially

noticeable facts render the pleading defective [citation], and allegations in the pleading

may be disregarded if they are contrary to facts judicially noticed.” (Scott v. JPMorgan

Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 751-752.) Generally, the existence of

judicial opinions and court documents, along with the truth of the results reached, are

proper matters for judicial notice. (People v. Woodell (1998) 17 Cal.4th 448, 455

(Woodell); Evid. Code, § 452.) Thus, both of the matters identified in the County’s

request are proper subjects of judicial notice and relevant to the disposition of the issues

presented on appeal. The taking of judicial notice here is particularly appropriate since

we are reviewing the complaint de novo to determine whether the complaint alleges facts

sufficient to state a cause of action.

We acknowledge that a formal request for judicial notice was not made in the trial

court and, as a general rule, a reviewing court will not take judicial notice of matters that

were not presented to and considered by the trial court in the first instance. (People v.

Hardy (1992) 2 Cal.4th 86, 134.) Nevertheless, “[t]he Court of Appeal has the same

power as the trial court to take judicial notice of matters properly subject to judicial

notice” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193), and “the

Evidence Code clearly contemplates that, at least in some situations, a reviewing court

will grant judicial notice even when the information was not presented to the trial court.”

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(Hardy, at p. 134.) As we explain, the procedural posture of this case presents an

exceptional circumstance falling outside the general rule.

First, it is apparent that plaintiff was fully aware of the matters identified in the

County’s request, even prior to the demurrer proceedings subject of this appeal. On its

face, the third amended complaint expressly references the probate proceedings and

appeal and further concedes that “[m]any of the issues regarding the public

administrator’s conduct in this case have been raised” in the related proceedings.

Notably, plaintiff does not contend that these documents are reasonably subject to dispute

and has not opposed the County’s request for judicial notice on appeal.

Second, both parties explicitly referenced and relied upon these matters in their

written arguments before the trial court. Indeed, plaintiff continues to refer to these

matters in support of her arguments on appeal. Thus, this is not a case in which judicial

notice has been requested in order to raise a new issue for the first time on appeal.

Finally, the purpose of the County’s request for judicial notice is to support its

collateral estoppel arguments. However, the procedural posture of this case strongly

suggests the County could not have timely filed a formal request for judicial notice in the

trial court for this purpose due to factors outside of its control. Specifically, after

issuance of our opinion in Estate of Rinaldo, supra, E074575, plaintiff petitioned for

review with the California Supreme Court, and the high court extended the time for

consideration of her petition. As a result, the remittitur following denial of plaintiff’s

petition was not issued until February 11, 2021. Thus, the County could not have filed a

formal request for judicial notice in support of its collateral estoppel arguments when it

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filed its demurrer on January 29, 2021. (See Riverside County Transportation Com. v.

Southern California Gas Co. (2020) 54 Cal.App.5th 823, 838 [“[A] judgment is not final

for purposes of . . . collateral estoppel if an appeal is pending or could still be taken. . . .

[T]he prior order or ruling must be final, in the sense that it is no longer subject to

appeal.”]; see also Siry Investments, L.P. v. Farkhondehpour (2015) 238 Cal.App.4th

725, 730 [“[A]n appeal is not final until the court has issued its decision and issued the

remittitur . . . .”].)

Nor is it apparent that the County could have filed a timely request for judicial

notice following issuance of the remittitur. Generally, moving papers in support of a

demurrer must be filed at least 16 court days in advance of the hearing. (Code Civ. Proc.,

§ 1005; Rules of Court, rule 3.1300.) The demurrer in this case was set for hearing on

March 9, 2021, which would have required the County to file a request for judicial notice

and personally serve that request the very day the remittitur issued in order to be

considered timely.3

For these reasons, we deem it appropriate to grant the County’s request for judicial

notice. We do not, however, take judicial notice of the truth of any factual recitations in

our opinion in Estate of Rinaldo, supra, E074575. (Woodell, supra, 17 Cal.4th at p. 455

[The court “cannot take judicial notice of the truth of hearsay statements in decisions or

court files.”]; Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001)

91 Cal.App.4th 875, 886-887 [same].) Thus, we do not necessarily agree with the

3 There were two court holidays between February 11 and March 9, 2021.

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County that judicial notice resolves any of the specific matters set forth in its brief.

Nevertheless, we will consider both the register of actions in Case No. PRMC1901063

and our opinion in Estate of Rinaldo, to the extent permitted by the Evidence Code in

evaluating the sufficiency of the allegations in the third amended complaint. We proceed

in considering the sufficiency of the factual allegations of the third amended complaint,

in light of the matters judicially noticed.

3. The Third Amended Complaint Fails to State a Cause of Action for Violation

of the Fourth Amendment

The second cause of action alleges the County violated plaintiff’s rights under the

Fourth Amendment of the United States Constitution. It alleges the public administrator

engaged in a seizure by taking possession of real property owned by decedent’s estate, in

which plaintiff either had an interest or, at the very least, stored items of personal

property she owned. We conclude the allegations are insufficient to state a Fourth

Amendment violation in the absence of facts to suggest that any alleged seizure was

unreasonable.

“ ‘ “The Fourth Amendment proscribes all unreasonable searches and seizures

. . . .” ’ ” (People v. Wilson (2020) 56 Cal.App.5th 128, 141.) It’s protections “extend to

civil as well as criminal matters.” (Blair v. Pitchess (1971) 5 Cal.3d 258, 271.) A

violation of the Fourth Amendment may, in some cases, give rise to a tort claim for

damages. (See Katzberg v. Regents of University of California (2002) 29 Cal.4th 300,

307-310.)

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 In order to plead a violation of the Fourth Amendment, a plaintiff must allege facts

that show conduct constituting a “ ‘seizure’ ” and that the seizure was unreasonable. (See

Brower v. County of Inyo (1989) 489 U.S. 593, 599; see also Torres v. City of Madera

(2008) 524 F.3d 1053, 1056.) “A ‘seizure’ of property occurs when there is some

meaningful interference with an individual’s possessory interests in that property.” (U.S.

v. Jacobsen (1984) 466 U.S. 109, 113.) However, “ ‘ “[t]he ultimate touchstone of the

Fourth Amendment is ‘reasonableness.’ ” ’ ” (People v. Ovieda (2019) 7 Cal.5th 1034,

1041; Terry v. Ohio (1968) 392 U.S. 1, 9 [“ ‘[W]hat the Constitution forbids is not all

searches and seizures, but unreasonable searches and seizures.’ ”].)

The allegations that plaintiff was evicted from real property in which she may

have held a property interest or was otherwise deprived of her personal property are

sufficient to allege an interference with a property right constituting a seizure within the

meaning of the Fourth Amendment. However, there are no facts suggesting that the

alleged seizure was unreasonable under the circumstances of this case. On its face, the

third amended complaint admits that the Property was a part of decedent’s estate, there

was a pending probate action regarding the estate, and the public administrator was

appointed by the probate court to administer the estate. The Probate Code expressly

grants the administrator the right to take possession of estate property and initiate a legal

action to do so. (§§ 9650, 9651, 9654.) Further, with respect to the claimed seizure of

personal items within the Property, the law recognizes that an administrator may refuse to

surrender such items upon demand by a third party until the administrator has had “a

14
reasonable opportunity to inquire into the claimant’s right.” (Giacomelos v. Bank of

America Nat’l Trust & Sav. Asso. (1965) 237 Cal.App.2d 99, 100-101.)

Thus, the facts admitted on the face of the pleading show that the public

administrator had the authority and the right to take steps to evict plaintiff from the

Property and to, at least temporarily, take possession of any items that may have been

stored on the Property. In this context, simply alleging the public administrator initiated

an eviction proceeding or took possession of personal property is not sufficient, on its

own, to suggest any act or omission by the public administrator was unreasonable. The

third amended complaint contains no factual allegations setting forth the manner or

method used by the public administrator to evict plaintiff from the property, let alone

facts to suggest that such acts were unreasonable. In the absence of such allegations, the

pleading does not state a violation of the Fourth Amendment, and the trial court did not

err in sustaining the demurrer to this cause of action.

4. The Third Amended Complaint Fails To State a Cause of Action for Violation

of the Fourteenth Amendment

The third cause of action alleges the County violated plaintiff’s rights under the

Fourteenth Amendment of the United States Constitution. Specifically, plaintiff alleges

she was denied due process because she was not given notice of the probate proceedings

related to the public administrator’s taking possession of the Property. We conclude that

in light of the facts subject to judicial notice, plaintiff’s conclusory allegations are

insufficient to state a claim for violation of her due process rights.

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 “The state and federal Constitutions prohibit government from depriving a person

of property without due process of law.” (Kavanau v. Santa Monica Rent Control Bd.

(1997) 16 Cal.4th 761, 771; U.S. Const., 14th Amend., § 1.) However, “[i]n civil

proceedings, ‘ “ ‘ “due process requires only that the procedure adopted comport with

fundamental principles of fairness and decency. The due process clause of the Fourteenth

Amendment does not guarantee to the citizen of a state any particular form or method of

procedure.” ’ ” ’ ” (Cahill Construction Co., Inc. v. Superior Court (2021)

66 Cal.App.5th 777, 789.)

Here, plaintiff alleges, generally, that she was deprived of her interest in the

Property without due process because she was not given notice. Standing alone, this

allegation might have supported a claim that her due process rights were violated. (See

Horn v. County of Ventura (1979) 24 Cal.3d 605, 612 [Generally, “[d]ue process

principles require reasonable notice and opportunity to be heard before governmental

deprivation of a significant property interest”].) However, “ ‘ “[a] complaint otherwise

good on its face is subject to demurrer when facts judicially noticed render it defective.” ’

” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6; C.R. v. Tenet Healthcare Corp.

(2009) 169 Cal.App.4th 1094, 1102 [“[A]ny allegations that are contrary to the law or to

a fact of which judicial notice may be taken will be treated as a nullity.”]; Scott v.

JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 751 [“[A]llegations in the

pleading may be disregarded if they are contrary to facts judicially noticed.”].)

Here, the register of actions in Case No. PRMC1901063, of which we have taken

judicial notice, contradicts plaintiff’s conclusory claims that she was not given notice.

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Specifically, plaintiff appealed the trial court’s order appointing the public administrator

the day after the order was made and before letters of administration had even issued.

Thereafter, the public administrator notified the trial court of the rejection of each of

plaintiff’s creditor’s claims and obtained special instructions from the trial court

regarding the disposition of the Property. The record further discloses that plaintiff filed

written opposition to the request for special instructions in the probate proceedings.

Thus, even assuming plaintiff had a protectable property interest at stake, the facts

subject to judicial notice establish plaintiff was aware of the probate proceedings and

actively participated in those proceedings, even to the point of filing a written opposition

to the request for special instructions involving disposition of the very Property she now

claims was wrongfully taken. In light of this record, plaintiff’s conclusory allegation that

she was not given notice is insufficient to state a claim for violation of her due process

rights under the Fourteenth Amendment. At the very least, plaintiff needed to allege why

she believes notice was insufficient and how the lack of such notice deprived her of a fair

hearing on any matter. Absent such allegations, the third amended complaint fails to

allege a violation of plaintiff’s due process rights, and the trial court did not err in

sustaining the demurrer to this cause of action.

5. The Third Amended Complaint Fails to State a Cause of Action for Common

Count

The fourth cause of action purports to state a claim for common count. We

conclude that this claim seeks the same relief and is premised upon the same facts as the

second and third causes of action and, as such, must fail for the same reasons.

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 a. The common count cannot be used to recover damages

“ ‘A common count is not a specific cause of action . . . ; rather, it is a simplified

form of pleading normally used to aver the existence of various forms of monetary

indebtedness . . . .’ ” (Professional Collection Consultants v. Lujan (2018)

23 Cal.App.5th 685, 690.) Thus, the common count cannot be used to recover damages.

(Weitzenkorn v. Lesser (1953) 40 Cal.2d 778, 793-794 [plaintiff cannot recover contract

damages under common count]; Zumbrun v. University of Southern California (1972)

25 Cal.App.3d 1, 14 [plaintiff cannot recover tort damages under common count].) Nor

can the common count be used to enforce contractual provisions other than the payment

of money after all other covenants and conditions of a contract have been met. (Moya v.

Northrup (1970) 10 Cal.App.3d 276, 281)

Here, the only relief requested pursuant to all of plaintiff’s purported causes of

action was for “general, special, compensatory and punitive damages.” Other than

damages, no other forms of relief were requested, either generally or pursuant to any

specific claim. Thus, despite plaintiff’s use of the label “common count” to describe the

fourth cause of action, it is apparent from the substantive allegations of the pleading that

she has not alleged a claim that could properly be characterized as a common count.

Where the liability she seeks to enforce is something other than the return of money, such

as an award of damages, the cause of action stated is not truly one for common count.

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 b. The common count is subject to demurrer when based upon the same

facts as specifically pleaded causes of action

Because the plaintiff’s use of the phrase “common count” in the third amended

complaint is a misnomer, we will look to the other causes of action alleged to determine

whether the demurrer was properly sustained. This is because “[w]hen a common count

is used as an alternative way of seeking the same recovery demanded in a specific cause

of action, and is based on the same facts, the common count is demurrable if the cause of

action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394-395;

Korchemny v. Piterman (2021) 68 Cal.App.5th 1032, 1048 [same].)

As we have already noted, all of plaintiff’s purported causes of action seek the

same recovery. Accordingly, the common count is clearly used merely as an alternative

way of seeking the same recovery as other causes of action. Additionally, the factual

basis of the common count claim is the public administrator’s rejection of plaintiff’s

creditor claims in the related probate action. These same acts are alleged as the basis of

plaintiff’s claims for violation of her constitutional rights under the Fourth and

Fourteenth Amendments. Thus, the claim is based on the same facts as causes of action

for which we have already concluded the demurrer was properly sustained, and we find

no error in the trial court’s sustaining of the demurrer to the common count.

c. Plaintiff’s attempt to reframe the common count claim on appeal does

not require a different conclusion

On appeal, plaintiff argues that her common count claim was intended as a

separate action pursuant to section 9353 for the purpose of pursuing independent claims

19
against decedent’s estate. However, this characterization appears to rely upon numerous

allegations that appear nowhere in the third amended complaint4 and, when reviewing the

adequacy of a complaint following sustaining of a demurrer, “we do not go beyond the

four corners of the complaint, except as to matters which may be judicially noticed.”

(Thorburn v. Dep’t of Corr. (1998) 66 Cal.App.4th 1284, 1287-1288.)

Moreover, we agree with the trial court’s interpretation that the third amended

complaint was not a suit for recovery against decedent’s estate. Neither the title of the

pleading nor any of the substantive allegations suggested the public administrator was

being sued in a representative capacity. (See Plumlee v. Poag (1984) 150 Cal.App.3d

541, 547 [substantive allegations of complaint must suggest suit is against an

administrator in a representative capacity, as opposed to individual capacity, and use of

the word “administrator” alone is not sufficient].) Plaintiff named other relatives as

defendants pursuant to the common count claim, which implies the claim was not

intended as a claim against the estate. Moreover, the substantive allegations of the

pleading identified the administrator’s acts as the basis for liability, not the acts or

omissions of the decedent; the prayer for relief explicitly stated that recovery was being

sought for the public administrator’s “tortious offense” in rejecting plaintiff’s claims; and

the prayer for relief further clarified that reference to the rejection of the creditor’s claims

was intended as an example of the public administrator’s alleged “willful negligence,”

“illustrating [defendants] wrongfully felt they had no duty to act on the evidence of the

4 Nor has plaintiff cited to the record to suggest where she may have made many
of these allegations in her pleadings before the trial court.

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claims or investigate the claims at all before denying them.” These allegations do not

suggest that any claims in the suit were brought as claims against the decedent but instead

as claims against the public administrator.

Finally, we note that, even if we were to read the common count cause of action in

the manner plaintiff now suggests, the cause of action would still have been subject to

demurrer. As the County correctly points out, section 9350 provides a limitations period

of 90 days to file an independent action following the rejection of a creditor’s claim

(§§ 9350, 9353), and this limitations period applies “ ‘ “regardless of the time otherwise

remaining on the statute of limitations.” ’ ” (Estate of Holdaway (2019) 40 Cal.App.5th

1049, 1056.) Plaintiff’s creditor’s claims were rejected on February 14, 2020, and

plaintiff made no reference to the creditor’s claims in any of her pleadings until

September 28.5 Thus, had the third amended complaint reasonably suggested the public

administrator was being named in a representative capacity regarding these underlying

claims, the statute of limitations could have been asserted and would have barred any

such cause of action. In such a circumstance, this court is permitted to consider such a

defense in affirming the judgment on appeal. (See Anderson v. McNally (1957) 150

5 “An amended complaint is considered a new action for purposes of the statute of
limitations . . . if the claims do not ‘relate back’ to an earlier timely-filed complaint . . . .
[A]n amendment relates back to the original complaint if the amendment: (1) rests on the
same general set of facts; (2) involves the same injury; and (3) refers to the same
instrumentality.” (Pointe San Diego Residential Community, L.P. v. Procopio, Cory,
Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 276.) A cause of action against
decedent’s estate involves a fundamentally different claim than one against the public
administrator in his or her individual capacity and would not relate back to prior
pleadings that do not mention any creditor’s claim against the estate.

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Cal.App.2d 778, 784 [where record shows that plaintiffs “could not allege truthfully . . .

that their action was filed within the statutory period,” there is no prejudice warranting

reversal, even if statute of limitations was not raised as a ground for demurrer in the trial

court].)

6. The Third Amended Complaint Fails To State a Cause of Action for Recovery

on a Judgment

The sixth cause of action alleged a violation of Code of Civil Procedure section

708.210, which provides a cause of action for a judgment creditor against third parties in

possession of a judgment debtor’s property. However, “ ‘[w]hen a pleader wishes to

avail himself of a statutory privilege or right given by particular facts, he must show the

facts, and those facts which the statute requires as a foundation of the action must be

stated in the complaint.’ ” (Green v. Grimes-Stassforth Stationery Co. (1940)

39 Cal.App.2d 52, 56; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d

590, 604 [“[F]acts in support of each of the requirements of a statute upon which a cause

of action is based must be specifically pled.”].) By its very terms, the cause of action set

forth in Code of Civil Procedure section 708.210 is only afforded to a judgment creditor

who has obtained a money judgment. Plaintiff has not alleged any facts to suggest she

has obtained a money judgment against any person, let alone any of the defendants.6

6 We also observe that, to the extent plaintiff contends she has claims against
decedent’s estate, “money judgments against the decedent, or the personal representatives
in their representative capacities, on a claim against the decedent’s probate estate are not
enforceable against the estate under the Enforcement of Judgments Law.” (Dobler v.
Arluk Medical Ctr. Indus. Group (2001) 89 Cal.App.4th 530, 537.)

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Absent such an allegation, the trial court did not err in sustaining the demurrer to this

cause of action.

7. The Third Amended Complaint Fails To State a Cause of Action for

Negligence

The eighth cause of action purports to state a claim for negligence. The

substantive allegations of this claim allege that Bertulli, as well as other family members

of decedent who are not parties to this appeal, “had a duty to care for the estate” and

“neglected this duty” because they “declined to administer the estate” and “declined to

appear in the probate case.” On appeal, the County contends this claim is “only against

other defendants”; although the third amended complaint does purport to allege this claim

against “all defendants,” and the County argued in the trial court proceedings as if the

negligence claim were asserted against it. We need not resolve this ambiguity because,

even assuming plaintiff intended to allege a negligence claim against the County, we

conclude the allegations of the third amended complaint are insufficient to state a cause

of action against any defendant.

“A complaint which lacks allegations of fact to show that a legal duty of care was

owed is fatally defective. [Citation.] The existence of such a duty is properly challenged

by demurrer and is a question of law for the court.” (Hegyes v. Unjian Enters.(1991)

234 Cal.App.3d 1103, 1111; Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 316

[demurrer to negligence claim appropriate “where the allegations of the complaint fail to

disclose the existence of any legal duty owed by the defendant to the plaintiff”].)

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 With respect to Bertulli, the allegations that she failed to take actions to administer

decedent’s estate or involve herself in the probate proceedings do not suggest the

existence of a legal duty. “[N]onfeasance generally does not give rise to a legal duty.

The underlying premise is that ‘a person should not be liable for “nonfeasance” in failing

to act as a “good Samaritan.” ’ ” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 531.)

Generally, in the absence of a special relationship, there is no affirmative duty to act for

the protection of another’s interests. (Ibid.) Thus, a claim for negligence cannot be

premised merely on allegations that Bertulli should have acted in a manner that might

have protected plaintiff’s interests.

With respect to the County, the allegations of the negligence claim do not

incorporate the allegations set forth in support of any other causes of action alleged in the

third amended complaint. Further, as the County now points out on appeal, the

attachment containing plaintiff’s negligence allegations does not specifically identify the

County or the public administrator as a defendant against whom the allegations are

directed. In the complete absence of any factual allegations setting forth the basis of this

claim against the County, the third amended complaint simply does not state a cause of

action for negligence.7 Absent allegations of fact from which it can be inferred that any

7 We also note that even if the County or public administrator had been identified
as a defendant in the negligence allegations, the trial court also concluded that the County
was entitled to immunity. We find no error in this determination. “Except as otherwise
provided by statute, a public employee is not liable for an injury resulting from his act or
omission where the act or omission was the result of the exercise of the discretion vested
in him, whether or not such discretion be abused.” (Gov. Code, § 820.2.) Absent an
express legislative intent to withhold or withdraw the statutory immunity in a specific
[footnote continued on next page]

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defendant owed a legal duty of care to plaintiff and breached that duty, the third amended

complaint fails to state a cause of action for negligence.

8. The Purported Cause of Action for Violation of the First Amendment Is Barred

by Collateral Estoppel

The ninth cause of action alleges a violation of plaintiff’s rights under the First

Amendment of the United States Constitution. The allegations do not identify which, if

any, of the defendants this claim is directed against. Nevertheless, plaintiff alleges her

constitutional rights were violated because “[t]he government has no place in an

uncontested estate with no other parties appearing.” This is, in essence, the same issue

plaintiff raised in her appeal of the trial court’s order appointing the public administrator

to administer decedent’s estate in Estate of Rinaldo, supra, E074575. Because this court

resolved that issue against plaintiff on appeal, we conclude the claim is barred by the

doctrine of collateral estoppel.

“Collateral estoppel (also known as issue preclusion) prevents relitigation of

previously decided issues. [Citation.] Issue preclusion applies ‘ “(1) after final

adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the

first suit and (4) asserted against one who was a party in the first suit or one in privity

situation, the immunity extends to all discretionary acts, even those in breach of a duty
imposed by common law or another general statute. (Caldwell v. Montoya (1995) 10
Cal.4th 972, 986.) The public administrator is a government employee within the
meaning of Government Code section 820.2 with respect to “acts or omissions . . . in his
capacity as administrator of [a decedent’s estate] in the course of administration of that
estate.” (Saltares v. Kristovich (1970) 6 Cal.App.3d 504, 515.) Thus, even if plaintiff
had alleged an act or omission by the public administrator constituting the breach of a
common law or statutory duty, it would not be sufficient to state a cause of action.

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with that party.” ’ [Citation.] The doctrine of issue preclusion applies to final orders in

proceedings under the Probate Code.” (Key v. Tyler (2019) 34 Cal.App.5th 505, 534.)

“[C]ollateral estoppel does not require a final and full adjudication of the merits of

the underlying action. It requires only a final adjudication of the issue sought to be

precluded in the second action.” (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180;

Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1560

[While “res judicata requires a final judgment, . . . an adjudication which is not a final

judgment may, under some circumstances, be given preclusive effect under the doctrine

of collateral estoppel.”].) This doctrine has particular application here because, in the

context of probate proceedings, “ ‘[t]he orders listed as appealable in the Probate Code

must be challenged timely or they become final and binding.’ ” (Estate of Reed (2017)

16 Cal.App.5th 1122, 1127.)

Here, in challenging the trial court’s authority to appoint a public administrator to

administer decedent’s estate, plaintiff explicitly challenged the trial court’s authority to

initiate probate proceedings in the absence of a disputed petition. Our opinion in Estate

of Rinaldo, surpa, E074575, of which we have taken judicial notice, resolved this issue

against plaintiff on both procedural grounds and on the merits, holding the trial court did

in fact have authority to initiate proceedings and appoint the public administrator, even in

the absence of a disputed petition by an interested party. That order is final as against

plaintiff, and plaintiff is barred by the doctrine of collateral estoppel from seeking to

relitigate the same issue. As such, the demurrer to this cause of action was properly

sustained.

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C. Plaintiff Has Not Shown an Abuse of Discretion in The Trial Court’s Denial of Leave

To Amend

Finally, we review the trial court’s denial of further leave to amend for abuse of

discretion. We deem any claim that the trial court abused its discretion forfeited and,

even in the absence of forfeiture, we conclude plaintiff has not met her burden to show an

abuse of discretion.

Plaintiff’s opening brief contains no discussion of the trial court’s denial of leave

to amend or the possibility that any defect can be cured by amendment. As such, we

must deem the issue waived or abandoned on appeal. (Golden Door Properties, LLC v.

County of San Diego (2020) 50 Cal.App.5th 467, 554-555.) Further, in order to meet her

burden to show an abuse of discretion on appeal, plaintiff “must submit a proposed

amended complaint . . . or ‘enumerate the facts and demonstrate how those facts establish

a cause of action.’ ” (Reid v. City of San Diego (2018) 24 Cal.App.5th 343, 369; Brenner

v. City of El Cajon (2003) 113 Cal.App.4th 434, 444.) Plaintiff has not done so here.

Thus, even in the absence of forfeiture, we would conclude plaintiff has failed to meet

her burden to establish an abuse of discretion.

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 IV. DISPOSITION

The judgment is affirmed. Respondents to recover their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.
We concur:

McKINSTER
Acting P. J.

RAPHAEL
J.

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