Opinion
B223673
11-02-2011
JAMI HANELIN, Plaintiff and Appellant, v. HELGA HANELIN, Individually and as Trustee, etc., Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SC102852)
APPEAL from a judgment of the Superior Court of Los Angeles County, Linda K. Lefkowitz, Judge. Affirmed.
McCullough & Wright, Thomas B. McCullough, Jr. and Lauriann Wright for Plaintiff and Appellant.
Gilchrist & Rutter, Frank Gooch III and Yen N. Hope for Defendant and Respondent.
INTRODUCTION
Plaintiff and appellant Jami Hanelin (Jami) appeals a judgment of dismissal in favor of defendant and respondent Helga Hanelin (Helga) entered after the trial court
sustained Helga's demurrer to Jami's first amended complaint (FAC). We affirm.
Helga was sued individually, as well as in her capacity as the trustee of the Survivor's Trust under Sidney Hanelin and Helga Hanelin Revocable 1988 Trust (Survivor's Trust) and the trustee of the Sidney Hanelin Decedent Trust UA Dtd 6-13-88 (the Decedent's Trust).
This case is a family dispute over money. Helga is Jami's stepmother. When Jami became ill, she asked Helga for financial assistance. Jami alleges that in June 2006 Helga orally agreed to provide such assistance until she got better (the Oral Agreement). Jami further alleges Helga stated in a letter to Jami dated August 1, 2007 (the Letter) that she would provide certain financial assistance, though in a lesser amount than she agreed to in the Oral Agreement.
The essential issue on appeal is whether the FAC states facts sufficient to constitute a cause of action. Jami contends that the FAC states a breach of contract cause of action based on alleged breaches of the Oral Agreement and the Letter. We disagree. Any cause of action for breach of the Oral Agreement is barred by the statute of limitations. Any cause of action for breach of the Letter fails because there was no consideration for Helga's promises in that document. The trial court therefore correctly sustained Helga's demurrer.
BACKGROUND
1. Allegations in the First Amended Complaint
The FAC alleged the following. Jami is the adult daughter of Sidney Hanelin (Sidney). Sidney and Helga were married when Jami was a little girl. Helga was Signey's third or fourth wife and is Jami's stepmother. Sidney had four children: Jami, whose mother was Sidney's second or third wife, and three other children from his marriage to Helga.
In 1988 Sidney and Helga established the Sidney Hanelin and Helga Hanelin Revocable 1988 Trust (the Trust). Sidney died in 2003. Thereafter, pursuant to the terms of the Trust, the Trust split into four subtrusts: (1) the Survivor's Trust, (2) the Decedent's Trust, (3) the Sidney Hanelin Exempt Qualified Domestic Trust UA Dtd 6-13-88 (Exempt Trust); and (4) the Sidney Hanelin Non-Exempt Qualified Domestic Trust UA Dtd 6-13-88 (Non-Exempt Trust). The Survivor's Trust is revocable; the other three trusts are irrevocable. Jami and her three siblings are beneficiaries of the three irrevocable trusts. Jami is also a remainder beneficiary of the Survivor's Trust and will become entitled to her inheritance from the Trust when Helga dies. Helga is the trustee of the Trust, the Survivor's Trust and Decedent's Trust.
In 2006 Jami was suffering from fibromyalgia, which caused her pain. As a result of her illness, she was unable to work for the foreseeable future. In order to raise money for her medical bills, as well as her living expenses, which totaled between $6,000 and $7,000 per month, Jami placed her house in Oxnard for sale. Jami received an offer to purchase her home for $1,170,000.
On June 5, 2006, Jami contacted Helga and asked for financial assistance. Jami advised Helga about the pending sale of her home and the reason for the sale, namely that Jami was running out of liquid assets with which to pay her living expenses and medical bills.
Helga told Jami to not sell her house because she would provide Jami with financial assistance through the Survivor's Trust and Decedent's Trust. Specifically, Helga promised that she would pay all of Jami's $6,000 to $7,000 in living expenses using funds from the trusts, with these payments being offset against Jami's eventual inheritance without interest. This promise constituted the Oral Agreement.
At the time of the Oral Agreement, Helga unequivocally told Jami that the Survivor's Trust and Decedent's Trust had sufficient assets to pay for all of Jami's monthly living expenses. Helga further said, "I have $2,000 a month that I am giving Tatiana [another family member] but she is dying, so I can give you that as soon as she dies. And I will look and review where to get the rest of the money."
In reliance on the promise of support made in the Oral Agreement, Jami rejected the $1,170,000 offer to purchase her home and took the property off the market. Shortly thereafter, Jami contacted Helga and asked her to put the Oral Agreement in writing. Helga became very angry and not only refused to put the Oral Agreement in writing, "but also refused to honor the [Oral Agreement] at all, thus breaching the contract in or about July 2006."
Jami then put her house back on the market. In late 2007 the property sold for $1,085,000, which is $85,000 less than the previous offer Jami rejected in reliance on Helga's promise in the Oral Agreement. If the house had sold at the original $1,170,000 sales price, Jami "would not have needed any financial assistance." Helga's breach of the Oral Agreement put Jami "in an extreme financial hardship."
On August 1, 2007, Helga sent Jami the Letter, which was hand-written. The Letter stated: "[B]ecause of your ill health and your current inability to work, I am advancing you [$30,000] paid out of the Survivor Trust to be deducted from your portion of your inheritance at the time of my death. There will be no interest charged.
"Furthermore, as long as you are in need, you will receive [$2,000] monthly, also as an advance/no interest, starting the beginning of Sept. 07.
"I am truely [sic] sorry about your ill health and I hope you will be feeling better soon.
"I hope your house will be sold to your advantage.
"You and Jonathan are, and always have been, a part of this family.
"Let me hear from you!"
The Letter also included the following statement under Helga's signature: "P.S. [¶] I am also thanking Harry for being very helpful." The Letter further stated: "CC to Harry Sussman."
A copy of the Letter was attached to the FAC.
Sussman was an old friend of Sidney and a co-trustee of the Exempt Trust and Non-Exempt Trust. In about June 2007, Jami attempted to "informally resolve and compromise" Helga's breach of the Oral Agreement, "enlisting" Sussman to mediate the dispute. Eventually Jami agreed to a $30,000 up-front payment and monthly $2,000 payments as long as Jami was "in need." During "settlement negotiations" the parties agreed that "need" meant "as long as [Jami] remained disabled, unable to work, and, thus, unable to pay for all of her monthly living expenses." The "P.S." reference in the Letter, "with the aid of extrinsic evidence, places the [Letter] in context and acts as an acknowledgment of the [Oral Agreement]."
Helga paid the $30,000 she promised in the Letter and the first monthly payment of $2,000. But in a letter dated September 7, 2007, Helga advised Jami that due to "tremendous, unforeseen expenses," she could not provide assistance for at least two months, and that she would be out of the country until December. Afterwards, Helga sent only two more checks, one for $2,000 in December 2007, and another for $1,000 in February of 2008. With her final payment Helga sent a note stating, "Money is very tight for me now also." Helga made this statement even though there was sufficient funds in the Survivor's Trust and Decedent's Trust for Helga to make the payments she promised in the Letter.
In early March 2008, Jami began efforts to try to settle Helga's alleged breaches of the Oral Agreement and Letter, which she refers to as the "ORIGINAL AGREEMENT" and "ACCORD" respectively.
Based on the foregoing allegations, the FAC set forth five causes of action: (1) breach of contract (two counts); (2) breach of covenant of good faith and fair dealing; (3) specific performance of contract; (4) promissory fraud; and (5) constructive fraud. Because Jami does not make any arguments on appeal relating to the last four causes of action, we shall only describe the two counts in the first cause of action for breach of contract.
Jami has forfeited any arguments regarding the trial court's order sustaining Helga's demurrer to the second, third, fourth and fifth causes of action. (Jones v. Jacobson (2011) 195 Cal.App.4th 1, 19, fn. 12 ["issues and arguments not addressed in the briefs on appeal are deemed forfeited"].)
In the first count for promissory estoppel Jami alleges she reasonably and detrimentally relied on Helga's promises in the Oral Agreement, and that injustice can only be avoided by enforcing the contract. In the alternative, if the court does not enforce the Oral Agreement, Jami requests the court to enforce the Letter. The consideration for the Letter was Jami's "contemplated relinquishment for her claimed rights under the [Oral Agreement]."
In the second count for equitable estoppel, Jami alleged Helga is estopped from asserting the statute of limitations against Jami's claim for breach of the Oral Agreement. Jami further alleges Helga should be equitably estopped from "denying the validity" of the Oral Agreement and the Letter.
2. Procedural History
This action commenced on April 29, 2009, when Jami filed her complaint against Helga. Helga filed a demurrer to the complaint, which was sustained with leave to amend.
On October 5, 2009, Jami filed the FAC. Helga filed a motion to strike portions of the FAC and a demurrer to the FAC.
On January 22, 2010, the trial court sustained the demurrer without leave to amend as to count 1 of the first cause of action of the FAC, and with 30 days leave to amend as to count 2 of the first cause of action and the remaining causes of action. The trial court found that the requirements of promissory estoppel were not satisfied because Helga did not make a clear and unambiguous promise in the Oral Agreement. It found that Helga's promises in the agreement were conditional and ambiguous at best in light of Helga's statement that she was giving $2,000 a month to Tatiana and would use that money to pay Jami upon Tatiana's death. The trial court did not address the merits of Helga's argument that the Oral Agreement was barred by the statute of limitations.
The trial court also granted Helga's motion to strike. Jami presents no arguments on appeal regarding the motion to strike.
Jami did not amend the FAC. Instead, she and Helga stipulated that the court enter judgment in Helga's favor. On March 16, 2010, pursuant to the parties' stipulation, the trial court entered a judgment of dismissal in Helga's favor on all causes of action of the FAC. This appeal followed.
CONTENTIONS
Jami contends the trial court erroneously sustained Helga's demurrer to her first cause of action for breach of contract. She argues that because all of the elements of promissory estoppel exist, there was no need for consideration for Helga's promises in the Oral Agreement.
Jami further argues that the statute of limitations does not bar a claim for breach of the Oral Agreement for four reasons. First, the limitations period was tolled pursuant to Code of Civil Procedure section 360 (section 360). Second, the Oral Agreement is an "installment contract," and the statute of limitations accrues each time Helga fails to make a payment. Third, Helga is equitably estopped from asserting the statute of limitations. Finally, Jami's suit was timely because the limitations period is extended under the doctrine of equitable tolling.
Alternatively, Jami argues that if her claim for breach of the Oral Agreement is barred, she can maintain a cause of action for breach of the Letter. She contends the consideration for Helga's promises in the Letter was Jami's agreement to not sue Helga for breaching the Oral Agreement.
DISCUSSION
1. Standard of Review
On appeal from a judgment or order of dismissal following a ruling sustaining a general demurrer, we determine de novo whether the complaint alleges facts sufficient to constitute a cause of action. (SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 82 (SC Manufactured Homes); Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 633, fn. 3.) " 'We affirm the judgment if it is correct on any ground stated in the demurrer, regardless of the trial court's stated reasons. [Citation.]' " (Entezampour v. North Orange County Community College Dist. (2010) 190 Cal.App.4th 832, 837.)
" 'We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and facts of which judicial notice can be taken. [Citation.] We construe the pleading in a reasonable manner and read the allegations in context. [Citation.]' " (SC Manufactured Homes, supra, 162 Cal.App.4th at p. 82.) However, we need not accept as true plaintiff's "contentions, deductions or conclusions of fact or law." (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.)
2. The First Amended Complaint Fails to State Facts Sufficient to Constitute a Cause of Action
a. Promissory Estoppel
Promissory estoppel is an equitable doctrine used to satisfy the requirement of consideration in a breach of contract cause of action. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 275; Yari v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172, 182.) The elements of promissory estoppel are " ' "(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance." [Citation.]' " (Advanced Choices, Inc. v. State Dept. of Health Services (2010) 182 Cal.App.4th 1661, 1672.)
With respect to the Oral Agreement, the parties dispute whether each of these elements is satisfied by the facts alleged in the FAC. We do not reach this issue because we hold that a cause of action for breach of the Oral Agreement is barred by the statute of limitations.
With respect to the Letter, Jami does not contend that promissory estoppel is needed to satisfy the requirement of consideration. Rather, she argues that her forbearance from suing under the Oral Agreement constituted the consideration Helga received for the Letter. For reasons we shall explain post, we reject that argument.
b. A Cause of Action for Breach of the Oral Agreement is Barred by the Statute of Limitations
The statute of limitations for a cause of action for breach of an oral contract is two years. (Code Civ. Proc., § 339.) The FAC alleges Helga breached the Oral Agreement in July 2006. Jami, however, did not commence this action until April 2009, more than two years after the breach. Accordingly, a cause of action for breach of the Oral Agreement is barred by the statute of limitations.
(i) The Limitations Period Is Not Tolled Pursuant to Code of Civil Procedure Section 360
Jami contends the statute of limitations was tolled pursuant to section 360. Section 360 is found in Title 2 of Part 2 of the Code of Civil Procedure, which sets forth the statute of limitations for various causes of action. Section 360 provides: "No acknowledgment or promise is sufficient evidence of a new or continuing contract, by which to take the case out of the operation of this title, unless the same is contained in some writing, signed by the party to be charged thereby . . . ."
A debtor's acknowledgment of a debt or new promise to pay the debt starts a new full statutory period running on the cause of action. (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 751, p. 981 (Witkin).) Section 360 provides that in order to start a new statutory period, the acknowledgment or promise must be in writing. (Western Coal & Mining Co. v. Jones (1946) 27 Cal.2d 819, 823 (Western Coal).)The writing must be "in the form of an express promise to pay or an unconditional acknowledgment of the indebtedness, signed by the debtor, and communicated to the creditor or creditor's agent or representatives. If these requirements are satisfied, informal writings, such as letters, notices, and checks, will be sufficient." (Witkin, supra, § 751, p. 981.)
Jami argues that the Letter is an "acknowledgment" of the Original Agreement. We reject this argument. The Letter does not state anything about the Oral Agreement or any previous contract under which Helga was required to pay Jami money. The Letter also does not state anything about a previous dispute between Helga and Jami, much less an agreement to resolve the dispute by some sort of settlement. Instead, the Letter states that Helga is providing Jami financial assistance "because of [Jami's] ill health and [her] current inability to work[.]" This statement is inconsistent with Jami's claim that Helga agreed to make payments in light of Helga's alleged obligations under the Oral Agreement.
Moreover, in the Letter Helga promised to make only $2,000 in monthly payments, which is far less than the $6,000 or $7,000 she allegedly promised in the Oral Agreement. This is not an acknowledgment of Helga's alleged obligations under the Oral Agreement or a promise by Helga to make the payments allegedly due under that agreement. It is an entirely different promise that is inconsistent with Helga's alleged promise in the Oral Agreement.
Jami argues she can use extrinsic evidence to save her section 360 argument. Specifically, she contends extrinsic evidence can be used to show that the words "I am also thanking Harry for being very helpful" indicate the Letter was an acknowledgment or a promise relating to the Oral Agreement. We disagree.
The parole evidence rule " 'generally prohibits the introduction of any extrinsic evidence, whether oral or written, to vary, alter or add to the terms of an integrated written instrument.' " (Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 343.) "Further, even if a contract is not integrated, extrinsic evidence cannot be used to contradict the contract's terms unless the language is 'reasonably susceptible' to the proposed interpretation. [Citation.] Indeed, unless the language is 'reasonably susceptible' to the proposed meaning, extrinsic evidence cannot even be considered to explain or otherwise shed light upon the parties' intent." (Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050, 1061; accord Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 522 ["extrinsic evidence is not admissible in order to give the terms of a written instrument a meaning of which they are not reasonably susceptible"].)
Extrinsic evidence cannot be used to show that the Letter was a promise by Helga to comply with the terms of the Oral Agreement or an acknowledgment of that agreement. As stated ante, the Letter provides that Helga is making certain payments to Jami "because of [Jami's] ill health and [her] current inability to work[.]" It does not state Helga is making payments to settle Jami's claim that Helga breached the Oral Agreement. Jami cannot use extrinsic evidence to contradict the express statement in the Letter itself.
Jami also cannot use extrinsic evidence regarding the sentence "I am also thanking Harry for being very helpful" because that sentence is not reasonably susceptible to the meaning proposed by Helga. Indeed, the sentence is not even a "term" of the Letter because it does not relate to the parties' obligations. Rather, the sentence is merely a vague, gratuitous expression of gratitude to a third party. It cannot reasonably be interpreted as a promise by Helga to abide by the terms of the Oral Agreement, or an acknowledgment by Helga that she is or ever was liable under the Oral Agreement.
Jami also argues the Letter is a "new" promise "which serves to revive the statute of limitations on the [Oral] Agreement" under section 360. She further argues: "Nothing in Section 360 states, or even suggests, that the new promise must be the same as the original promise in order to toll or revive the statute of limitations." We disagree. As our Supreme Court has explained: "A promise is plainly what the word imports, namely an engagement to pay the debt." (Western Coal, supra, 27 Cal.2d at p. 822, italics added.) The debt referred to is not a new debt, but the "existing debt." (Ibid., italics added.) Accordingly, the Letter did not include a new promise to abide by the Oral Agreement within the meaning of section 360 because the promise in the Letter was different than the promise in the Oral Agreement.
We therefore hold that the Letter was not an acknowledgment or a promise within the meaning of section 360, and that the two-year statute of limitations was not tolled by section 360.
(ii) The Oral Agreement Was Not a Severable Contract
Jami argues her claim for breach of the Oral Agreement is not barred by the statute of limitations because the Oral Agreement is an "installment contract." According to Jami, the statute of limitations for her to bring an action for breach of the Oral Agreement accrues each time Helga breaches the contract by failing to make a monthly payment due. We disagree.
"As a general rule, a cause of action accrues and a statute of limitations begins to run when a controversy is ripe—that is, when all of the elements of a cause of action have occurred and suit may be maintained. [Citation.] Where there is a continuing wrong, however, with periodic new injury to the plaintiff, the courts have applied what Justice Werdegar has termed a 'theory of continuous accrual.' [Citations.]
"Thus, where performance of contractual obligations is severed into intervals, as in installment contracts, the courts have found that an action attacking the performance for any particular interval must be brought within the period of limitations after the particular performance was due. The situations in which this rule has been applied include not only installment contracts [citation], but also such diverse contractual arrangements as leases with periodic rental payments [citation], and contracts calling for period, pension-like payments on an obligation with no fixed and final amount [citation]." (Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, 1388 (Armstrong))
Whether the statute of limitations continues to accrue depends on whether the contract is "entire" or "severable." If the contract is entire, the statute of limitations will accrue upon a material breach even before the date for final performance by the defendant. (Armstrong, supra, 116 Cal.App.4th at p. 1389.) Conversely, if the contract is severable, the statute of limitations will accrue each time the defendant fails to perform a new obligation under the contract. (Ibid.)
The divisibility of a contract depends upon the intention of the parties. (Armstrong, supra, 116 Cal.App.4th at p. 1389; World Sav. & Loan Assn. v. Kurtz Co. (1960) 183 Cal.App.2d 319, 328 (World Savings).) " 'Generally speaking, the test of whether a contract is divisible is that if the consideration is single, the contract is entire, but if the consideration is apportioned, the contract may be regarded as severable.' " (Hayutin v. Weintraub (1962) 207 Cal.App.2d 497, 509; accord World Savings, at p. 328; see also Gold Min. & Water Co. v. Swinerton (1943) 23 Cal.2d 19, 30 (Gold)[holding mineral lease which required lessee to pay monthly royalties was an entire obligation].) In other words, a contract is divisible when, inter alia, " ' "the performance of each part by one party is the agreed exchange for a corresponding part by the other party." ' " (Jozovich v. Central California Berry Growers Assn. (1960) 183 Cal.App.2d 216, 223.)
Here, the Oral Agreement was an entire contract, not a severable one. Helga purportedly agreed to pay Jami her monthly living expenses for as long as she was unable to work. Jami was not required to provide anything in return in consideration for each payment. Each monthly payment was not a severable, divisible part of the alleged contract. Rather, Helga's promise to pay Jami was part of the same promise to help Jami until her health improved.
In July 2006, Helga allegedly committed a partial breach of the Oral Agreement by refusing to pay Jami's monthly living expenses. She also repudiated the contract in its entirety by stating that she refused to honor the Oral Agreement "at all." This constituted a total breach of the contract (Gold, supra, 23 Cal.2d at p. 29) which caused the accrual of the statute of limitations on Jami's cause of action for breach of the Oral Agreement (Fox v. Dehn (1974) 42 Cal.App.3d 165, 173). Because Jami did not file her suit within the two-year statute of limitations, her cause of action for breach of the Oral Agreement is barred.
(iii) Helga Is Not Equitably Estopped from Asserting the Statute of Limitations
Jami argues Helga is equitably estopped from asserting the statute of limitations as a defense. The FAC alleges Helga induced Jami to defer taking action on the breach of the Oral Agreement by sending the Letter and making several payments pursuant to the Letter.
A defendant is not equitably estopped from asserting the statute of limitations as a result of a misrepresentation to the plaintiff unless "the representation proves false after the limitations period has expired[.]" (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 384 (Lantzy).) Here, the FAC alleged that in early March, 2008, Jami began efforts to settle Helga's failure to abide by the terms of the Oral Agreement and the Letter. At that time, however, the statute of limitations on a claim for breach of the Oral Agreement had not run, and would not run for about another four months, in July 2008. Helga thus is not, as a matter of law, equitably estopped from asserting the statute of limitations.
Jami's reliance on Battuello v. Battuello (1998) 64 Cal.App.4th 842 (Battuello) is misplaced. There, the plaintiff did not learn that the defendant's false representations were false until after the statute of limitations had passed. (Id. at p. 848.) Battuello is thus distinguishable from the present case.
(iv) Jami's Suit Is Not Timely Under the Doctrine of Equitable Tolling
"Equitable tolling is a judge-made doctrine 'which operates independently of the literal wording of the Code of Civil Procedure' to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness." (Lantzy, supra, 31 Cal.4th at p. 370.) "[T]he effect of equitable tolling is that the limitations period stops running during the tolling event, and begins to run again only when the tolling event has concluded. As a consequence, the tolled interval, no matter when it took place, is tacked onto the end of the limitations period, thus extending the deadline for suit by the entire length of the time during which the tolling event previously occurred." (Id. at pp. 370-371.) " 'As with other general equitable principles, application of the equitable tolling doctrine requires a balancing of the injustice to the plaintiff occasioned by the bar of his claim against the effect upon the important public interest or policy expressed by the . . . limitations statute.' " (Id. at p. 371.)
Here, Jami alleges the statute of limitations was equitably tolled from June 2007, when she began settlement negotiations with the help of Harry Sussman until February 2008, when Helga breached the Letter—a period of nine months. This would extend the statute of limitations from July 2008 to April 2009. Thus, according to Jami, the present case is not barred by the statute of limitations because she filed her complaint on April 29, 2009. We reject this argument.
The FAC alleges Helga induced Jami to defer taking action on the Oral Agreement by sending the Letter and making several payments under it. The FAC does not state, however, that Jami relied, reasonably or otherwise, on any statements made by Helga during the alleged negotiations in June and July 2007. Jami cites no authority holding that merely engaging in informal settlement negotiations equitably tolls the running of the statute of limitations. We hold that such negotiations alone cannot be the basis for equitable tolling. (65 Butterfield v. Chicago Title Ins. Co. (1999) 70 Cal.App.4th 1047, 1063; State, Indiana Civil Rights Com'n v. Ini Newspapers, Inc. (Ind. 1999) 716 N.E.2d 943, 947-948; Baldwin Carpet Linoleum v. Builders, Inc. (Neb. Ct. App. 1994) 523 N.W.2d 33, 47; Mergenthaler v. Asbestos Corp. of America (Del. Super. Ct. 1985) 500 A.2d 1357, 1365, fn. 13; Lebowitz v. Singer (Penn. Super. Ct. 1974) 323 A.2d 824, 826.)
Because the statute of limitations was not equitably tolled during the alleged negotiations in June and July 2007, the tolling period began, at the earliest, on August 1, 2007, when the Letter was executed. Assuming, for the sake of argument, the tolling
period ended in March 2008, the statute of limitations would be tolled, at most, for a period of eight months. This would extend the statute of limitations from July 2008 to March 2009. Jami, however, did not file her complaint until April 29, 2009. Therefore Jami's action is barred by the statute of limitations even assuming the statute was equitably tolled in light of the Letter and the subsequent period when it appeared Helga would make continuous payments pursuant to the Letter.
Jami contends in her opening brief that the tolling period ended in February 2008, when Helga allegedly breached the Letter. The FAC states that in early March 2008, Jami began efforts to try to settle Helga's alleged breach of the Oral Agreement and Letter.
c. There Was No Consideration for the Letter
Consideration is an essential element of a binding and enforceable contract. (Civ. Code, § 1550; George v. Bekins Van & Storage Co. (1949) 33 Cal.2d 834, 857.) A promise to make a gift does not constitute consideration. Such a promise is unenforceable unless there is some other consideration, or the doctrine of promissory estoppel can be used as a substitute for consideration. (Haase v. Cardoza (1958) 165 Cal.App.2d 35, 37-38.)
Here, Jami contends Helga breached the Letter by failing to make monthly $2,000 payments as long as Jami was "in need." But Helga's promise was merely a commitment to make gifts to Jami. There was no consideration for this promise or any other promise in the Letter. The Letter therefore is not an enforceable contract.
Because the promised payments consisted of interest-free advances on Jami's inheritance, the value of the gifts can be measured by the time-value of money.
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Jami argues the consideration for the Letter was her agreement to not sue Helga for breaching the Oral Agreement. As we explained ante, however, the Letter itself states that Helga agreed to make monthly payments to Jami in light of Jami's ill health and inability to work. Extrinsic evidence cannot be used to contradict this statement. Moreover, there are no terms in the Letter that are reasonably susceptible to Jami's proposed interpretation. We thus reject Jami's argument that the consideration for the Letter was Jami's forbearance from suing Helga for breach of the Oral Agreement. 3. Jami Did Not Meet Her Burden of Showing There Is a Reasonable Possibility of Curing the Defects in the First Amended Complaint by Amendment
When a general demurrer is sustained the plaintiff must be given leave to amend his or her complaint when there is a reasonable possibility that the defect can be cured by amendment. (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43 (Rakestraw).) "The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
"To satisfy that burden on appeal, a plaintiff 'must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.' [Citation.] The assertion of an abstract right to amend does not satisfy this burden." (Rakestraw, supra, 81 Cal.App.4th at p. 43.) The plaintiff must clearly and specifically state "the legal basis for amendment, i.e., the elements of the cause of action," as well as the "factual allegations that sufficiently state all required elements of that cause of action." (Ibid.)
Here, Jami did not make any attempt to show how she could amend the FAC to save her lawsuit. Jami thus did not meet her burden of showing there is a reasonable possibility of curing the defects in the FAC by amendment.
DISPOSITION
The judgment of dismissal, dated March 16, 2010, is affirmed. Respondent Helga Hanelin is awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J. We concur:
CROSKEY, Acting P. J.
ALDRICH, J.