Broussalian v. Arzoumanian-Broussalian

STEVE BROUSSALIAN, Plaintiff and Appellant, v. SUSAN ARZOUMANIAN-BROUSSALIAN et al., Defendants and Respondents.

B311983

California Court of Appeals, Second District, Seventh Division

December 14, 2021

NOT TO BE PUBLISHED

APPEAL from a postjudgment order of the Superior Court of Los Angeles County No. 19BBCV00671, John J. Kralik, Judge. Affirmed.

Heller & Edwards and Mark L. Edwards for Plaintiff and Appellant.

Shahen Hairapetian for Defendants and Respondents Susan Arzoumanian-Broussalian and Sarkis Allen Arzomanian.

PERLUSS, P. J.

After the trial court sustained a demurrer to Steve Broussalian's second amended complaint without leave to amend and dismissed the case, Broussalian moved to vacate the dismissal pursuant to Code of Civil Procedure section 473 subdivision (b), ^[1] arguing his counsel had been mistaken when she informed the court nothing further could be alleged to cure the pleading's legal defect. The court denied the motion. Broussalian has appealed the denial of his motion to vacate but not the order dismissing his lawsuit. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Broussalian's Complaints and the Demurrer to the Second Amended Complaint

Broussalian filed a verified complaint on July 30, 2019, a verified first amended complaint on January 6, 2020 and the operative verified second amended complaint on April 1, 2020. In his second amended complaint Broussalian alleged he; his sister Susan Arzoumanian-Broussalian; and Susan's husband Sarkis Allen Arzoumanian, on March 26, 2002 obtained title to certain property as joint tenants, and Broussalian, along with the siblings' mother, subsequently began residing at the property.

In 2012 Broussalian signed a deed that stated he quitclaimed his rights in the property to Susan and Sarkis as a gift. The quitclaim deed was recorded on May 29, 2012, concur rently with an instrument transferring Susan and Sarkis's rights in the property to the 2000 Sarkis Allen Arzoumanian and Susan Lydia Arzoumanian Revocable Trust (the Trust), of which Susan and Sarkis were cotrustees. Although the quitclaim deed was valid on its face, it was void or voidable, Broussalian alleged, because Susan and Sarkis exerted undue influence over Broussalian to have him sign it. Broussalian had signed the quitclaim deed without knowledge of its nature and effect on his ownership rights, which he discovered for the first time on August 4, 2015. He had also signed the deed in reliance on Sarkis's representations that his signature was necessary to stop harassment by members of the homeowners association and to prevent a lawsuit threatened against him by an association member; and, contrary to Sarkis's assurances, the harassment from the homeowners association members continued.

The second amended complaint alleged causes of action for undue influence, cancellation of deed, quiet title, intentional misrepresentation and declaratory relief. It attached exhibits and Broussalian's declaration in which he averred under penalty of perjury numerous supporting facts.

On June 3, 2020 Susan and Sarkis, as individuals and in their capacities as cotrustees of the Trust (collectively the Arzoumanians), demurred to the second amended complaint, as they had to Broussalian's prior complaints, on the ground each of his causes of action was time-barred. The Arzoumanians argued Broussalian's causes of action were subject to various limitations periods-such as four years from the 2012 date the quitclaim deed was signed or recorded or three years from the August 2015 date Broussalian discovered the deed's nature and effect on his ownership rights-all of which had expired before the July 30, 2019 date Broussalian filed his original complaint.

In opposing the demurrer Broussalian contended the statutes of limitations for all causes of action were tolled pursuant to section 328 because he had a disability:^[2] As alleged in the second amended complaint, Broussalian suffered symptoms of "stress, headaches, anxiety, segmented sleep patterns, nightmares, panic attacks, emotional fatigue and withdrawal for much of his life," leading him to seek treatment from Dr. Silvio Del Castillo; Dr. Del Castillo began prescribing medication for the symptoms, which the doctor stated resulted from stress due to Broussalian's living situation and relations with family members; and Broussalian was also under the care of psychiatrist Dr. Dirk De Brito from 2014 to 2015. Broussalian asserted, even if the court were to find insufficient evidence of a disability for tolling under the statute, it could still grant equitable tolling based on the Arzoumanians' undue influence.

In their reply brief the Arzoumanians argued none of Broussalian's symptoms showed lack of legal capacity to make decisions within the meaning of section 328 and Broussalian had avoided stating under penalty of perjury in his verified second amended complaint he lacked that capacity. The Arzoumanians asserted the untimeliness of Broussalian's claims was also not cured by the equitable tolling doctrine, which only applied to toll the limitations period while the claimant pursued an alternative remedy.

On October 13, 2020 the trial court sustained the Arzoumanians' demurrer to the second amended complaint without leave to amend and dismissed the case. Among other reasons the court, observing the second amended complaint "still fails to squarely allege" Broussalian lacked the legal capacity to make decisions, found Broussalian had not sufficiently alleged or provided supporting exhibits showing he lacked that capacity. The court also explained Broussalian's counsel had conceded at the hearing on the demurrer she had "no further ability to amend the complaint to allege [Broussalian's] legal incapacity." It rejected Broussalian's equitable tolling argument in part because he had failed to cite authority showing the doctrine applied when a case involved undue influence.

2. Broussalian's Motion To Vacate Dismissal

On October 23, 2020 Broussalian moved to vacate the dismissal pursuant to section 473, subdivision (b), on the ground his counsel had mistakenly advised the court there were no additional facts that could be alleged to support Broussalian's legal incapacity.^[3] Broussalian argued the court had authority to grant relief on the basis of "excusable mistake, inadvertence, or neglect."^[4]

As set forth in his motion and supported by his accompanying declaration, Broussalian had been diagnosed with attention deficit disorder ("ADD") as a child, a disorder which was later listed as "ADD/ADHD" on his recent medical records (a change of nomenclature rather than of diagnosis); Dr. Del Castillo, who had confirmed the diagnosis and continued treatment of his disorder, and Dr. De Brito had prescribed Adderall for his ADD/ADHD, a medication that he had taken from 2012 to 2016 when the Arzoumanians badgered him to stop taking the medication during an unannounced visit to the property; Dr. Del Castillo had periodically prescribed a higher than normal dosage to control his worsening symptoms; his ADD/ADHD symptoms were severe enough to be deemed a disability, resulting in Dr. Del Castillo referring him to two social workers; and in 2016 he applied for food stamps because he was unable to work in his condition. Broussalian attached as an exhibit to his declaration his medical records showing his diagnosis and the medication Dr. Del Castillo prescribed to treat it.

As explained in Broussalian's motion and the accompanying declaration of his attorney Kim Cameron, Cameron had failed to check with Broussalian before informing the court there were no additional allegations to be made regarding Broussalian's legal incapacity. Cameron had been unaware at the October 13, 2020 hearing on the Arzoumanians' demurrer of Broussalian's ADD/ADHD diagnosis and the associated Adderall prescription. In prior conversations with Broussalian, Cameron had asked him for his diagnosis, he had given her the list of his symptoms, and she had not pressed him further. (In his declaration Broussalian stated he had believed the symptoms of his disorder were what the trial court had required.) When Cameron informed him on October 14, 2020 of the court's ruling sustaining the Arzoumanians' demurrer, Broussalian told her of both the diagnosis and the prescription.

On November 30, 2020 the Arzoumanians filed their opposition to Broussalian's motion. The Arzoumanians asserted Cameron's claimed mistake of failing to check with Broussalian before informing the court of the absence of additional allegations to support a showing of Broussalian's legal incapacity did not constitute excusable neglect and, even if it did, affixing the "ADD/ADHD" label to Broussalian's previously alleged symptoms did not change the fact he had failed to show his lack of legal capacity to make decisions. They also contended the motion should be denied because Broussalian had failed to submit a proposed third amended complaint with the motion, as required by the statute. Relying on Broussalian's allegation in the second amended complaint that in signing the quitclaim deed he had been "acting solely in self-preservation to prevent any further harassment [by] the [homeowners association]," the Arzoumanians further argued Broussalian's admission he had engaged in a deliberative process in signing the deed confirmed he did not lack the legal capacity to make decisions.^[5] On December 7, 2020 Broussalian filed his reply brief. In arguing the trial court should exercise its discretion to set aside the dismissal, Broussalian stated he did not dispute the Arzoumanians' assertion the mandatory provisions of section 473, subdivision (b), were inapplicable. He supported his brief with additional declarations, including one...