Filed 6/29/23 Steinhardt v. Krohe 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

ZANDRA STEINHARDT,

Plaintiff and Respondent,

v.

CHRISTOPHER D. KROHE,

Defendant and Appellant.

F084215

(Super. Ct. No. 17CEPR00902)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Brian M. 

Arax, Judge.

Christopher D. Krohe, in pro. per., for Defendant and Appellant.

Tuttle & McCloskey and Daniel T. McCloskey for Plaintiff and Respondent.

-ooOooChristopher Krohe, who is representing himself and is incarcerated, appeals the 

probate court’s order granting respondent Zandra Steinhardt judgment on the pleadings in 

Krohe’s petition against her. Krohe is the sole remainderman and beneficiary of an 

irrevocable special needs trust that Steinhardt had administered as trustee for about a 

decade. In 2017, the probate court granted Steinhardt’s petition to resign as trustee, 
2.

thereby approving and settling her accountings, and ratifying her actions as trustee. 

Although Krohe sent various communications to the probate court, he did not formally 

contest Steinhardt’s petition; nor did he appeal or otherwise challenge the probate court’s 

order. Instead, about three years after the 2017 order, Krohe began submitting ex parte 

requests to the probate court asserting that Steinhardt had breached her fiduciary duties as 

trustee. In April 2021, Krohe’s petition for breach of fiduciary duty was accepted for 

filing. The petition alleged various forms of trust mismanagement, including assertions 

that Steinhardt had filed a false final accounting, diverted trust funds to herself, and took 

certain pieces of artwork from the trust. The probate court granted Steinhardt judgment 

on the pleadings, concluding that all of Krohe’s claims were barred as res judicata based 

on the 2017 approval of Steinhardt’s first and final accounting, and that Krohe’s petition 

was untimely filed under the three-year statute of limitations. We affirm as to all claims 

except those regarding the removal of the artwork.

BACKGROUND1

The Trust

In 2007, Krohe’s mother, Marla Krohe, formed an “Irrevocable Special Needs 

Trust” (the Trust) with Steinhardt, her cousin, as trustee. As relevant, the Trust 

agreement provides that upon Marla’s death, the Trust property should be distributed to 

her then-living issue who have reached the age of 50. Krohe is Marla’s only child, and 

he was 34 years old when she died in 2009. Therefore, under the terms of the Trust, his 

share continues to be held and administered by the Trust until he turns 50 years old. 

Upon Marla’s death, Krohe became the sole beneficiary of the Trust, which provides for 

discretionary payments for his health, education, support, and maintenance. 

1 The record does not include a reporter’s transcript, so this summary is drawn 

solely from the clerk’s transcript.
3.

Through all periods relevant to this appeal, Krohe has been incarcerated at Mule 

Creek State Prison where he has received goods and payments to his prisoner account 

from the Trust, arranged for by Steinhardt as trustee. 

Steinhardt’s 2017 Petition

On August 25, 2017, Steinhardt (through counsel) filed in Fresno County Superior 

Court a petition for acceptance of her resignation as trustee, appointment of a successortrustee, settlement of her first and final account, and payment of fees, pursuant to Probate 

Code section 17200.2 Steinhardt filed with the petition a declaration attaching a complete 

accounting of the funds of the Trust since its inception. As required by law, Steinhardt’s 

accounting summaries stated the Trust’s receipts, disbursements, assets, and liabilities for 

each fiscal year, supported by detailed schedules itemizing income, losses, sales, and 

distributions. (§§ 1062, 16063.) 

A hearing on the petition was set for October 3, 2017, and copies of the petition 

and attachments and a Notice of Hearing were served on Krohe in prison on 

September 18, 2017. Krohe attempted to file what he describes as an “objection” to the 

accounting and a request to continue the hearing, but on October 2, 2017, the court 

returned his documents unfiled, explaining that he had not paid the fee to become a party 

to the case or requested a fee waiver. At the October 3 hearing, the matter was continued 

to October 31, 2017. 

In the meantime, Steinhardt filed a supplemental declaration and additional 

supporting documents in response to a probate examiner’s notes. At the hearing on 

October 31, 2017, Judge Debra Kazanjian granted Steinhardt’s petition. In a written 

order signed the same day (October 2017 order), the court found that “[n]otice of the 

hearing was given as required by law” and ordered, as relevant, that (1) Steinhardt’s 

resignation was approved and accepted, (2) the first and final account of the Trust were 

“settled and approved,” (3) “all acts and transactions of [Steinhardt] as Trustee ... [were] 

2 All undesignated statutory references are to the Probate Code.
4.

confirmed and approved,” and (4) Donald Fischer, a professional fiduciary, would be 

appointed successor-trustee upon his filing of a bond. Fischer filed a bond on November 

2, 2017, and he has been the new trustee ever since. 

Krohe did not appear at the October 31, 2017 hearing, and he contends that he was 

never notified of this continued hearing date or any other event in the case until 

January 24, 2018, when Steinhardt’s counsel served him with a notice of order, attaching 

the October 2017 order granting the petition. Krohe did not attempt to appeal or 

otherwise challenge the October 2017 order granting Steinhardt’s petition.

Krohe’s Submissions and 2021 Petition

More than two years later, beginning in August 2020, Krohe resumed attempting 

to file documents in the case. These documents were returned unfiled for failure to pay 

the filing fee or request a fee waiver and for being submitted ex parte. By the end of 

October 2020, Krohe successfully filed an ex parte application with numerous 

attachments, including a fee waiver request and a petition for breach of fiduciary duty 

against Steinhardt. Judge Kazanjian held a hearing on the ex parte application in 

January 2021, with Krohe and Fischer appearing remotely. The court granted Krohe’s 

fee waiver request but informed Krohe that his petition could not be filed as such in its 

current form because it was submitted as an attachment to the ex parte application. The 

court continued the matter to April 2021 to allow Krohe to refile the petition on its own. 

On April 14, 2021, the court accepted for filing Krohe’s petition which is the 

subject of this appeal. The petition is styled as a petition for breach of fiduciary duty by a 

trustee, brought under section 17200, subdivision (b)(12). The petition is difficult to 

decipher and does not set forth distinct causes of action, but as best we can tell from the 

petition—and Krohe’s declaration subsumed within it—Krohe asserted the following. 

First, he alleged Steinhardt had “filed a false final accounting” in her 2017 resignation 

petition and had taken money and property from the Trust for her own profit, based on 

his assessment that the balances on several of the accounting summaries were “off.” 
5.

Krohe averred he was served with the first and final account on September 18, 2017. By 

comparing the summary balances against the itemized income and expenses for each 

fiscal year, Krohe calculated about $17,000 was unaccounted for between 2009 and 2017. 

From this, Krohe inferred that these sums had been “stolen from the [T]rust” over the 

years. Second, based on losses shown in the accountings, Krohe alleged Steinhardt 

mismanaged Trust funds in two respects: by losing some $6,700 in a “risky investment” 

in a John Hancock Fund, and by unnecessarily incurring about $12,000 in attorney fees 

paid to a law firm by the name of Dowling & Aaron. Third, Krohe alleged that 

Steinhardt had improperly removed from the Trust various pieces of art, including two 

paintings thought to be worth $25,000 each. Four weeks after Marla’s death in 2009, 

Steinhardt began to remove items from Marla’s house. At that time, she ignored Krohe’s 

repeated requests to send him photographs and a catalog of all the artwork. Krohe never 

received a catalog of the art, but at some point Steinhardt informed him that the paintings 

had been placed in storage. However, when he received the “inventory to the assets 

property” on December 28, 2017—several months after the accountings were approved 

by the court—there was no artwork listed on it. In January 2018, Krohe learned from 

Fischer (the successor-trustee) that there were no paintings or artwork in the storage 

facility. Relatedly, Krohe also alleged that Steinhardt had failed to store his personal 

music recordings and recording equipment, which had been at his mother’s house. 

After a series of hearings on ancillary matters before Judge Brian Arax—who took 

over the case (likely due to Judge Kazanjian’s retirement)—in June 2021, Steinhardt filed 

her response to the petition. Judge Arax held a hearing on Krohe’s petition in 

September 2021, at which Krohe and Fischer appeared as well as Steinhardt (through her 

counsel), and the court set the matter for a bench trial to occur in May 2022. 

In November 2021, however, Steinhardt filed a motion for judgment on the 

pleadings and to recover attorney fees. Steinhardt sought dismissal on the grounds that 

Krohe’s petition was attempting to relitigate issues resolved by Judge Kazanjian’s 
6.

October 2017 order, which had become final and conclusive as to all interested parties; 

and that Krohe’s petition was barred by the statute of limitations, having been filed more 

than three years after his claims accrued. 

Probate Court’s Ruling

The motion was fully briefed, and after a hearing in February 2022, the probate 

court granted Steinhardt’s motion in full. The court agreed with Steinhardt that 

(1) Krohe’s petition was barred under the doctrine of res judicata, specifically collateral 

estoppel, in light of the October 2017 order; and (2) to the extent the petition raised any 

new or different issues, it was time barred under the three-year statute of limitations for 

fraud (Code Civ. Proc., § 338) or breach of trust (§ 16460). As to collateral estoppel, the 

probate court adopted in full Steinhardt’s arguments in support of her motion. The court 

noted that both Krohe’s instant petition and Steinhardt’s 2017 petition “addresse[d] the 

handling of the [T]rust by Ms. Steinhardt”; Krohe was an interested party to the 2017 

petition; Krohe received notice of the petition, as previously found by Judge Kazanjian; 

Judge Kazanjian had “accept[ed] the accounting and ratif[ied] the acts of the trustee”; and 

after receiving notice of the October 2017 order, Krohe did not appeal it, making it a final 

ruling as the time to appeal had long passed. 

The probate court then went on to find that, in addition, the statute of limitations 

for Krohe’s petition had expired. After listing the petition’s various types of allegations, 

the court found the gravamen of the petition was fraud, and therefore the statute of 

limitations was three years—whether construed as an action for pure fraud (Code Civ. 

Proc., § 338) or for breach of fiduciary duty (§ 16460). The court found that Krohe’s 

claims that Steinhardt “mishandled items belonging to Mr. Krohe, misappropriated funds 

of the estate, and wrongfully took possession of or gave away items of artwork” accrued 

in the weeks and months following Marla’s death in 2009; and those claims were time

barred as having “occurred some eleven (11) years before Mr. Krohe’s petition.” The 

court found that Krohe’s remaining claims based on “commingling funds, filing a false 
7.

accounting, wrongful incurring of attorney’s fees, diversion of funds, negligent handling 

of investment account, and failure to account” were also time barred, whether measured 

from September 18, 2017, when he received the first and final account or from 

January 24, 2018, when he received the notice of the order approving the accounting. 

The court noted Krohe’s failure to have his petition filed sooner than April 14, 2021—

despite his attempts to lodge documents starting in September 2020—was a result of his 

“obstinate refusal” to pay the filing fee and follow court procedures. The court did not 

address Krohe’s minimal arguments, set forth in his opposition papers, for tolling the 

statute of limitation under California Rules of Court Emergency rule 9 (Emergency 

rule 9). (See Cal. Rules of Court, Appendix I: Emergency Rules Related to COVID-19, 

rule 9.) 

Finally, the court exercised its equitable powers to award Steinhardt her attorney 

fees and costs in defending against Krohe’s petition, which the court found “frivolous, 

without merit and brought in bad faith.” These fees and costs were assessed against the 

Trust. 

Appeal

The order denying Krohe’s petition is appealable, and Krohe timely filed his 

notice of appeal. (See Code Civ. Proc., § 904.1, subd. (a)(10); §§ 1304, subd. (a), 17200, 

subd. (b)(12).) At Steinhardt’s request, we struck Krohe’s initial opening brief for 

numerous deficiencies. However, we denied Steinhardt’s renewed motion to strike 

Krohe’s amended opening brief, leaving open the possibility of nevertheless finding one 

or more issues waived based on any continuing deficiencies. 

DISCUSSION

I. Arguments

Krohe asks us to reverse the order, including its award of attorney fees, because 

neither collateral estoppel nor the statute of limitations should bar his claims. He argues 

that collateral estoppel should not apply because of the doctrine’s exception for cases of 
8.

extrinsic fraud. Krohe advances numerous arguments why his petition should be deemed 

timely—all of which essentially assert a later accrual date, an earlier constructive filing 

date, or various forms of tolling, including under Emergency rule 9. 

For her part, Steinhardt argues that we may affirm on either ground relied upon by 

the trial court, and that we should strike Krohe’s amended opening brief either in part or 

in whole for failing to provide coherent arguments with sufficient citations. Specifically, 

Steinhardt urges that the issues of fraud, delayed discovery, tolling, deprivation of 

constitutional rights, and “cruel and unusual punishment” have been waived for failure to 

support these issues with citations to the record. 

We see no reference to “cruel and unusual punishment” in Krohe’s opening brief; 

and we understand Krohe’s fraud and due process arguments to be part and parcel of his 

challenges to the probate court’s application of the statute of limitations and the collateral 

estoppel doctrine. Although far from perfect, Krohe’s amended opening brief contains 

adequate citations both to the record and to precedent to allow us to consider his delayed 

discovery and tolling arguments. Accordingly, we do not deem any of Krohe’s 

arguments waived for noncompliance with briefing requirements.3

II. Analysis

For the reasons explained below, we conclude that res judicata bars Krohe’s 

claims related to Steinhardt’s first and final account, which are not saved by the extrinsic 

fraud exception; but res judicata does not bar Krohe’s claims related to Steinhardt’s 

alleged removal of tangible personal property from the Trust, and the face of the petition 

does not show that Krohe’s claims regarding the removal of artwork are necessarily 

untimely. We therefore affirm in part and reverse in part the judgment of the probate 

court.

3 Perhaps because of her view that these issues were waived, Steinhardt’s brief 

provides no substantive response to Krohe’s arguments for tolling, delayed discovery, or 

the extrinsic fraud exception. 
9.

A. The Accounting-related Claims Are Barred as Res Judicata

In an appeal from a motion granting judgment on the pleadings, we accept as true 

the facts alleged in the petition and review de novo any issues of law—such as 

application of the res judicata doctrine. (Angelucci v. Century Supper Club (2007) 

41 Cal.4th 160, 166; see City of Oakland v. Oakland Police & Fire Retirement System

(2014) 224 Cal.App.4th 210, 228.) 

“The doctrine of res judicata applies in probate proceedings to bar a party from 

relitigating a claim that has been finally determined in a prior proceeding.” (Hudson v. 

Foster (2021) 68 Cal.App.5th 640, 663 (Hudson), fn. omitted; see Lazzarone v. Bank of 

America (1986) 181 Cal.App.3d 581, 591 (Lazzarone).) An order settling a trustee’s 

account, ratifying her acts, and/or allowing her resignation is an appealable probate order, 

which, once final, is conclusive as to all matters passed upon by the court and as to all 

persons with an interest in the trust property—that is, unless the order is vitiated by 

extrinsic fraud. (§ 1300, subds. (b), (c), (i) [designating appealable orders]; Lazzarone, at 

pp. 591–592, 595.) Any alleged misconduct apparent on the face of the account must be 

promptly raised, or else approval of the accounting will become res judicata. (Lazzarone, 

at pp. 590, 594–595.)

Krohe, the sole beneficiary of the Trust, certainly had an interest in the Trust 

property, and the October 2017 order approving Steinhardt’s acts as trustee, settling her 

first and final account, and permitting her resignation became final long ago—with no

appeal having been made. (See Cal. Rules of Court, rule 8.104(a) [time to appeal].) 

Accordingly, res judicata must bar Krohe’s attempt to relitigate any issues “passed upon” 

by the court in granting Steinhardt’s petition. (See Lazzarone, supra, 181 Cal.App.3d at 

pp. 591–592 [“An order settling a trustee’s account, like an order settling the account of 

an executor or administrator, is conclusive as to all matters passed upon but is not binding 

as to those matters not passed upon.”].)
10.

In approving Steinhardt’s first and final account in October 2017, the probate 

court necessarily passed upon the issues Krohe now seeks to raise regarding (1) the 

accuracy and veracity of her accountings and (2) her exercise of due care in managing 

Trust funds with respect to investments and expenses disclosed in the accountings. In 

reviewing Steinhardt’s section 17200 petition, the probate court had a duty “imposed by 

law to inquire into the prudence of the trustee’s administration.” (Lazzarone, supra, 

181 Cal.App.3d at p. 594 & fn. 10 [discussing McLellan v. McLellan (1941) 17 Cal.2d 

552, 554; Carr v. Bank of America etc. Assn. (1938) 11 Cal.2d 366, 373 (Carr)].) This 

included a duty to “scrutinize” the account submitted. (Schwartz v. Labow (2008) 

164 Cal.App.4th 417, 427.)

Krohe’s first claim—that Steinhardt’s accounting was “false” and fraudulent—was 

based entirely on his arithmetical comparison of the same financial summaries and 

itemizations provided to the court for approval. The probate court is presumed to have 

scrutinized this same information and therefore must have found (rightly or wrongly) that 

the accounts were accurate before it “settled and approved” the first and final account. 

(See Carr, supra, 11 Cal.2d at p. 373 [“we must presume that [the probate court] 

performed its duty”].) Similarly, Krohe’s second claim is based on specific line items 

expressly disclosed in Steinhardt’s accountings: (1) the decreases in value of Steinhardt’s 

investment of Trust money in a fund called “John Hancock Funds II,” and (2) the 

payment of attorney fees to the Dowling & Aaron law firm. “It was apparent to the 

probate court from the documents presented upon the [trustee]’s account and petition ... 

that the respondent [trustee] had retained said [investment] during the administration of 

the [Trust] and that [it] had ... depreciated in value.” (Ibid.) It was equally apparent to 

the probate court that the Trust had paid for the services of attorneys. “The ‘issues 

presented’ by the petition include not only the account’s arithmetical accuracy but also 

whether the trust has been mismanaged. [Citation.] Approval of the account thus negates 

a claim of mismanagement.” (Lazzarone, supra, 181 Cal.App.3d at p. 593, discussing 
11.

McLellan v. McLellan, supra, 17 Cal.2d at p. 554; see Carr, supra, 11 Cal.2d at p. 374 

[holding that an order settling an account “conclusively negatives the charge of 

mismanagement, negligence or fraud on the part of the ... executor”].)

Krohe fails to convince us that the extrinsic fraud exception should prevent the 

application of res judicata to these issues conclusively decided in adjudicating 

Steinhardt’s petition.4 Extrinsic fraud refers to “fraud in obtaining the order itself.” 

(Knox v. Dean (2012) 205 Cal.App.4th 417, 425.) “Extrinsic fraud occurs when ‘ “ ‘the 

unsuccessful party has been prevented from exhibiting fully his case, by fraud or 

deception practi[c]ed on him by his opponent,’ ” ’ or when ‘fiduciaries have concealed 

information they have a duty to disclose.’ ” (Id. at p. 426, quoting Lazzarone, supra, 

181 Cal.App.3d at p. 596.) Res judicata does not protect settled accounts of fiduciary 

administrators “who withheld information that would have enabled the beneficiaries to 

attack the accounts.” (Hudson, supra, 68 Cal.App.5th at p. 666.)

Steinhardt did not prevent Krohe from participating in the proceedings on her 

2017 petition. Krohe admits, and the record confirms, that he was served with the 

petition and the attached accounting and that he received notice of the October 3, 2017 

hearing. Although Krohe has consistently maintained that he did not receive notice of the 

subsequent October 31, 2017 hearing and the record contains no direct proof that he was 

notified, Judge Kazanjian affirmatively found in her order signed the same day that 

“[n]otice of the hearing was given as required by law.” And in any event, it is undisputed 

that in January 2018, Krohe received the notice of order regarding the October 2017

order and did nothing to attempt to set aside that order. 

4 Likely because Krohe did not assert any extrinsic fraud argument in his brief in 

opposition to Steinhardt’s motion for judgment on the pleadings, the probate court did not 

address this exception in its res judicata analysis. However, Krohe did raise the extrinsic 

fraud exception in several filings surrounding Steinhardt’s motion, and we exercise our 

discretion to briefly reject his arguments here. 
12.

The second form of extrinsic fraud also is not present because Steinhardt’s 

accountings did not conceal or withhold any of the information Krohe is now using to 

belatedly attack those accounts. (See Hudson, supra, 68 Cal.App.5th at p. 666.) Indeed, 

Krohe relies exclusively upon information and calculations contained on the face of the 

accountings approved by the probate court. Accordingly, Krohe’s claims based on the 

purportedly false accounting and alleged mismanagement of Trust funds with respect to 

investments and attorney fees are barred because they would require relitigation of issues 

conclusively decided in the October 2017 order, which Krohe could have challenged at 

the time.

However, we disagree with the probate court’s conclusion that all of Krohe’s 

claims were barred by virtue of the decision on Steinhardt’s petition. Krohe’s allegations 

that Steinhardt improperly removed from the Trust several pieces of art stand apart from 

the above discussed allegations pertaining to the Trust’s financial accounts. The record 

provides no basis for concluding the probate court passed upon Steinhardt’s purported

secret removal of tangible personal property in the form of artwork during her 

administration of the Trust. (See Lazzarone, supra, 181 Cal.App.3d at pp. 591–592 

[order settling a trustee’s account “is conclusive as to all matters passed upon but is not 

binding as to those matters not passed upon”].) The first and final account approved by 

the probate court details all of the Trust’s financial transactions and assets during 

Steinhardt’s trusteeship. The only tangible personal property mentioned in the accounts 

are sales of a few cars. The record contains no inventory or catalog of tangible personal 

property belonging to the Trust, or its whereabouts, and there is no indication such an 

inventory was presented to the probate court. Krohe alleges and avers that he received an 

“inventory” of the Trust’s tangible property from Steinhardt on December 28, 2017—

several months after the order approving the accountings—and the inventory did not list 

the paintings in question. At this point, it remains unknown when, or even whether, 
13.

Steinhardt removed the subject artwork from the Trust.5 This leaves us unable to say that 

the probate court necessarily approved the purported conveyance of this artwork, of 

which it was never informed. Although the probate court “confirmed and approved” all 

of Steinhardt’s “acts and transactions” as trustee, that approval cannot extend to acts of 

which the court was not aware. Steinhardt’s handling of the Trust’s tangible personal 

property—other than the handful of car sales disclosed in the accounting—simply was 

not an issue before the court in the 2017 petition. (See Lucido v. Superior Court (1990) 

51 Cal.3d 335, 341 [the burden of establishing issue preclusion rests on the party 

asserting estoppel].) Therefore, Krohe’s claims based on the removal of artwork from the 

Trust are not barred by the October 2017 order on Steinhardt’s petition.6 We next 

consider whether those claims are nonetheless time barred, as the probate court 

alternatively found.

B. The Artwork Removal Claims Are Not Necessarily Time Barred

As with a demurrer, a motion for judgment on the pleadings may not be granted on 

grounds of untimeliness unless the face of the pleading shows the cause of action is 

“necessarily barred by a statute of limitations.” (April Enterprises, Inc. v. KTTV (1983) 

147 Cal.App.3d 805, 825 (April Enterprises).) The probate court erred in granting 

judgment on Krohe’s artwork removal claims as time barred. While further proceedings 

5 The record also does not affirmatively indicate that the subject artwork was ever 

made part of the Trust res to begin with. The accounting for the Trust’s opening fiscal 

period (in 2007, just after Marla established the Trust) lists only two non-cash assets: a 

car and Marla’s Yorba Linda home. None of the accounts for the following fiscal periods 

mention the receipt of any artwork into the Trust. However, this is a merits problem, not 

a basis for deeming the artwork claims res judicata. 

6 Krohe’s claim that Steinhardt improperly disposed of Krohe’s personal music 

recordings and recording equipment is not a claim directed to the administration of Trust 

property. Krohe alleges those items belonged to him, not his mother; they were simply 

present at his mother’s house when she passed away. Accordingly, that claim is beyond 

the jurisdiction of the probate court. 
14.

may or may not establish the untimeliness of these claims, the face of the petition does 

not show they are necessarily untimely.

Applicable Statute of Limitations

All agree the statute of limitations for Krohe’s artwork related claims is three 

years.7 Construed as a claim for breach of fiduciary duty, for not disclosing (or actively 

concealing) the taking of Trust property, section 16460’s three-year statute of limitations 

period applies. Krohe’s allegations that Steinhardt unlawfully took paintings belonging 

to the Trust also resemble a claim of conversion, which likewise has a three-year statute 

of limitations window. (Code Civ. Proc., § 338, subd. (c)(1); see Regent Alliance Ltd. v. 

Rabizadeh (2014) 231 Cal.App.4th 1177, 1181 [conversion is “ ‘the wrongful exercise of 

dominion over the personal property of another’ ”].)

Accrual and Tolling

The general rule is that “an action accrues on the date of injury”; however, an 

exception known as the “discovery rule” delays the accrual date until the time the 

complainant becomes aware of the injury. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 

1103, 1109.)

Whether construed as a claim for conversion or for breach of trust, the discovery 

rule can be applied in determining the accrual date for Krohe’s artwork claims. (See 

Strasberg v. Odyssey Group, Inc. (1996) 51 Cal.App.4th 906, 917 (Strasberg) [statute of 

limitations for conversion accomplished by a fiduciary’s wrongful concealment did not 

begin to run until the beneficiary discovered or ought to have discovered the conversion]; 

see also Quick v. Pearson (2010) 186 Cal.App.4th 371, 378 [recognizing that § 16460, 

subd. (a)(2) expressly refers to the discovery rule]; April Enterprises, supra, 

7 Krohe briefly posits an alternative six-year statute of limitations under Code of 

Civil Procedure section 338, subdivision (c)(3)(A), but that provision applies only to 

actions for recovery of fine art brought against “a museum, gallery, auctioneer, or 

dealer,” none of which describe Steinhardt. 
15.

147 Cal.App.3d at p. 827 [deeming it well settled that the discovery rule applies to 

claims of breach of fiduciary duty].)

Section 16460, subdivision (a)(2) defines the rule’s application for breach of trust 

claims where no prior written account has disclosed the claim, stating a beneficiary’s 

claim is barred “unless a proceeding to assert the claim is commenced within three years 

after the beneficiary discovered, or reasonably should have discovered, the subject of the 

claim.” 8 This rule statement accords with the common-law construction of the rule 

applicable to claims of conversion where “a fiduciary has concealed the material facts 

giving rise to the cause of action.” (Strasberg, supra, 51 Cal.App.4th at p. 916.) In that 

scenario, “the statute of limitations does not commence to run until the aggrieved party 

discovers or ought to have discovered the existence of the cause of action for 

conversion.” (Ibid.)

Here, the probate court acknowledged the discovery rule’s applicability but failed 

to actually apply it to Krohe’s claims regarding the taking of the artwork. The court read 

Krohe’s petition to allege that Steinhardt “wrongfully took possession of or gave away 

items of artwork” in the weeks and months following Marla’s death in February 2009. 

The court then concluded, “All of that having occurred some eleven (11) years before 

Mr. Krohe’s petition, those complaints are time-barred.” (Italics added.) However, the 

petition does not state that the alleged wrongful taking occurred in 2009, and even if it 

did, that does not address the question of when Krohe alleges he learned of the taking.

According to the petition, “[a]bout 4 weeks after Marla Krohe died [] and soon 

after assuming office as successor trustee Zandra Steinhardt began to remove items from 

the Marla Krohe estate,” listing a street address in Yorba Linda, California. The petition 

and its imbedded declaration go on to state that Krohe repeatedly requested photographs 

8 Krohe alleges he never received any interim accountings or inventories of the 

Trust’s tangible personal property, and although Steinhardt denies this, in a judgment on 

the pleadings courts must accept the allegations as true. Therefore, the applicable 

subdivision of section 16460 is subdivision (a)(2).
16.

and a catalog of the artwork being removed from the home, but Steinhardt provided 

neither. Krohe avers that, other than two paintings given to friends of Marla’s, Steinhardt 

informed him on some unspecified date that “all the rest of the paintings were in 

[Steinhardt]’s storage at her home in Fresno.” Although he never received the requested 

documentation of the artwork, Krohe alleges that he only had reason to believe the 

paintings were gone when he received the “inventory to the assets property” on 

December 28, 2017, and the paintings were not on it. In January 2018, Krohe says he 

learned from Fischer (the newly appointed trustee) that “there were no paintings or 

artwork” in the Trust storage facility. (Capitalization omitted.) That month, Krohe also 

“wrote demanding return of [the] paintings,” but Steinhardt would not respond or take his 

calls. 

Thus, we do not read the petition to allege that Steinhardt wrongfully removed the 

paintings from the Trust in 2009, but rather to say that is when she physically moved the 

paintings out of Marla’s house after her passing, to place them in storage. (The 

accountings reflect that Marla’s Yorba Linda house was sold in 2010.) The petition is 

silent as to when the wrongful taking of these paintings may have occurred. All we are 

told is that, early on, Steinhardt “promised to keep the paintings for safe keeping for 

Krohe and it tur[ned] out when Krohe finally [received] the inventory there [were] no 

paintings.” 

Krohe directs us to April Enterprises, supra, 147 Cal.App.3d 805, a case in which 

judgment on the pleadings had also been granted on untimeliness grounds for a claim of 

breach of fiduciary duty, based on a breach occurring on a date unknown to the plaintiff. 

The parties were joint venturers in the television industry, each a fiduciary of the other, 

and the plaintiff alleged that in 1976 it discovered certain videotapes of their television 

show had been erased at some unknown date, in violation of the parties’ agreements. (Id.

at pp. 814, 827.) The Court of Appeal observed that the plaintiff “merely pled the 

discovery of the erasure which constituted the alleged breach shortly before filing suit 
17.

without giving [a] specific time of the breach. Indeed since the defendants possessed 

exclusive knowledge as to the date of the actual erasure, [the plaintiff] was in no position 

to allege when that event occurred.” (Id. at pp. 825–826.) The complaint was “silent as 

to the date of destruction,” which “may not have occurred until shortly before [the 

plaintiff] found out about it and filed suit.” (Id. at p. 826.) As a result, the court held the 

claim was “not necessarily time barred,” judging from the face of the pleadings. (Ibid.) 

And it held that, if further proceedings in the case established the date of the plaintiff’s 

injury, the discovery rule would apply—with the fact finder ultimately determining at 

trial the timeliness of the claims. (Id. at pp. 826–828.) In so holding, the court noted the 

discovery rule was “particularly appropriate when the defendant maintains custody and 

control of a plaintiff’s property or interests.” (Id. at p. 827.) 

As in April Enterprises, Krohe’s petition here is silent as to the date of the alleged 

wrongful taking, a fact which likewise would be in Steinhardt’s sole possession as the 

trustee, especially given that Krohe has been incarcerated this whole time. However, 

more than three years elapsed between Krohe’s alleged discovery that the paintings were 

missing in December 2017 and the filing of his petition in April 2021. It is safe to 

assume that Krohe’s injury occurred, if at all, before December 28, 2017, when he says 

he first saw the paintings were missing from the property inventory. Thus, unlike in 

April Enterprises where the plaintiff sued “[s]hortly after [its] discovery” of the tapes’ 

erasure (April Enterprises, supra, 147 Cal.App.3d at pp. 814–815), the face of Krohe’s 

pleading might still show his claims are necessarily time barred.

Nevertheless, as explained next, the combination of Krohe’s delayed discovery of 

the paintings’ removal and the rule-based tolling for the COVID-19 pandemic 

demonstrates that Krohe’s artwork claims still are not necessarily untimely.

Delayed Discovery

“The question [of] when a plaintiff actually discovered or reasonably should have 

discovered the facts for purposes of the delayed discovery rule is a question of fact unless 
18.

the evidence can support only one reasonable conclusion.” (Ovando v. County of Los 

Angeles (2008) 159 Cal.App.4th 42, 61.) In cases involving breach of a fiduciary 

relationship, “the burden typically falls on the plaintiff to ‘plead facts sufficient to 

convince the trial judge that delayed discovery was justified. And when the case is tried 

on the merits the plaintiff bears the burden of proof on the discovery issue.’ ” (Pollock v. 

Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 947, quoting April 

Enterprises, supra, 147 Cal.App.3d at p. 832.) To invoke the discovery rule, the 

complainant must specifically plead facts to show (1) the time and manner of discovery 

and (2) the inability to have made earlier discovery despite reasonable diligence. (Fox v. 

Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.)

In determining when a complainant should have discovered their claim or injury, 

our Supreme Court has held that the statute of limitations begins to run “when the 

plaintiff suspects or should suspect that [their] injury was caused by wrongdoing.” (Jolly 

v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1110.) The complainant “need not be aware of 

the specific ‘facts’ necessary to establish the claim;” it is enough if the complainant has 

“a suspicion of wrongdoing.” (Id. at p. 1111.) Such suspicion puts the aggrieved party 

on inquiry notice and requires a diligent investigation by that party to go “find the facts” 

to support their suspicion. (Ibid.) The existence of a fiduciary relationship between the 

parties “limits the plaintiff’s duty of inquiry by eliminating the plaintiff’s usual duty to 

conduct due diligence” (Ferguson v. Yaspan (2014) 233 Cal.App.4th 676, 683), but it 

does not permit that plaintiff to ignore facts “ ‘ “sufficient to arouse the suspicions of a 

reasonable [person],” ’ ” if such facts come to his attention (Czajkowski v. Haskell & 

White, LLP (2012) 208 Cal.App.4th 166, 177).

As to the first prong, the petition pleads with specificity the time and manner in 

which Krohe discovered the facts underlying his missing artwork claims. Krohe alleges 

he received by mail an inventory of the Trust’s tangible personal property on 
19.

December 28, 2017, separate from the financial accountings provided to the court,9 and 

realized the paintings were not listed on it. 

On the second prong, the question of when Krohe was on inquiry notice of his 

artwork removal claims is a question of fact because the petition’s allegations do not 

support only one reasonable conclusion. Accepting Krohe’s allegations as true, it is 

plausible he did not have reason to know of or suspect wrongdoing with respect to the 

paintings before receiving the December 2017 inventory. Steinhardt’s alleged ongoing 

refusal to provide Krohe with a catalog or inventory of the paintings despite his requests 

in the months after his mother’s passing might give rise to a suspicion of wrongdoing 

were it not for Krohe’s further allegations that Steinhardt nonetheless “promised to keep 

the paintings for safe keeping for [him]” and “informed [him] all the rest of the paintings 

were in [Steinhardt]’s storage at her home in Fresno.” 

Krohe further alleges that the only inventory he received of the tangible personal 

property in the Trust was the one he received in December 2017. Further proceedings 

may refute that claim; however, accepting it at this stage, we do not view the alleged lack 

of earlier inventories as sufficient to raise a suspicion that Steinhardt, the fiduciary 

trustee, was removing tangible property from the Trust. “[I]n fiduciary relationships, a 

plaintiff is often unable to observe or understand a breach of fiduciary duty because the 

fiduciary is ‘in full control of [the plaintiff’s] affairs and of the [disposition of its 

assets].’ ” (NBCUniversal Media, LLC v. Superior Court (2014) 225 Cal.App.4th 1222, 

1233, fn. 5 [middle bracket in original].) The petition does not plead facts demonstrating 

that Krohe believed he was entitled to periodic inventories of the Trust’s tangible 

property; nor does it plead any other basis for Krohe to suspect—before December 

9 As discussed in the previous section regarding res judicata, the first and final 

account did not “adequately disclose[]” the existence of a claim against Steinhardt for 

mishandling the paintings. (§ 16460, subd. (a)(1).) Therefore, Krohe’s receipt of the first 

and final account in September 2017 does not start the statute of limitations period, as it

would if we were applying section 16460, subdivision (a)(1).
20.

2017—that the Trust’s tangible property was not where Steinhardt had told him it was. 

(See id. at p. 1232 [a plaintiff’s inability to discover a cause of action may occur when it 

is particularly difficult for the plaintiff to observe the breach of duty, or when the injury 

itself is hidden].) Krohe’s incarceration throughout Steinhardt’s trusteeship reinforces 

our conclusion that the petition does not reveal a lack of reasonable diligence in 

investigating his claims. He could not, for instance, go personally investigate the 

contents of the Trust storage facility; and Steinhardt would have been under no obligation 

to permit an agent of Krohe’s to access the storage facility to investigate on his behalf. 

Krohe sufficiently alleges that he reasonably relied on Steinhardt’s word, and there was 

nothing more he should have done to discover the missing paintings sooner than 

December 2017.

We do not here decide as a matter of law that Krohe’s artwork removal claims 

accrued on December 28, 2017. Further proceedings and evidence may reveal grounds to 

support these claims’ accrual long before. We simply conclude that, on the face of the 

petition, it is plausible Krohe did not have reason to suspect the paintings were missing 

before December 28, 2017. Momentarily assuming that was the accrual date of Krohe’s 

artwork removal claims, this date still does not fall within three years of the filing of 

Krohe’s petition. Accordingly, we turn to Krohe’s arguments for tolling—that is, 

extending—the three-year statute of limitations period.

Tolling Under Emergency rule 9

Krohe asserts various grounds for tolling, both equitable and statutory. Because 

we agree with Krohe that Emergency rule 9, one of the Judicial Council’s responses to 

the COVID-19 pandemic, sufficiently tolled the statute of limitations period, we do not 

address the other tolling arguments.10 

10 However, in case it should arise again later in this litigation, we note that we 

currently see no reason the prisoner claims tolling statute should not apply to further 

extend the statute of limitations by up to an additional two years, if necessary. (See Code 

Civ. Proc., § 352.1 [authorizing up to two years of tolling if, “at the time the cause of 
21.

Approximately three years four months (1,203 days) elapsed between Krohe’s 

alleged discovery of his artwork removal claims on December 28, 2017, and the filing of 

his petition on April 14, 2021. Absent tolling, therefore, these claims would be barred by 

the three-year statute of limitations even giving Krohe the benefit of the discovery rule.

Emergency rule 9, subdivision (a) provides: “Notwithstanding any other law, the 

statutes of limitations and repose for civil causes of action that exceed 180 days are tolled 

from April 6, 2020, until October 1, 2020.” According to the Advisory Committee 

Comment, the “rule also applies to statutes of limitations ... found in codes other than the 

Code of Civil Procedure, including ..., for example, the Family Code and Probate Code.” 

(Advisory Com. Cmt., Cal. Rules of Court, Appendix I: Emergency Rules Related to 

COVID-19, rule 9.) Thus, Emergency rule 9 tolled lengthier statutes of limitations—like 

those in section 16460 and Code of Civil Procedure section 338, subdivision (c)(1)—for 

almost six months (178 days, to be precise). This is enough to make Krohe’s claims 

timely if one counts from December 28, 2017. Three years (1,095 days) plus 178 days 

equals 1,273 days; meaning, Krohe’s April 14, 2021 petition was filed 70 days before the 

tolled statute of limitations period expired (again, assuming a December 28, 2017,

accrual date).11

action accrued,” the person was “imprisoned on a criminal charge, or in execution under 

the sentence of a criminal court for a term less than for life”].) The record amply 

establishes that Krohe was in prison on December 28, 2017, when he says he discovered 

the missing paintings, and it appears from the allegations in Steinhardt’s 2017 petition 

that Krohe was convicted before his mother died and received a “lengthy sentence,” 

which he is still serving. 

11 As previously mentioned, Steinhardt offers no arguments on the subject of 

Emergency rule 9 tolling in this court. Her one-line argument to the probate court was 

that Emergency rule 9 should not extend the statute of limitations because “the cause of 

action arose when the hearing was held in 2017, almost three years prior to the 

COVID-19 pandemic.” However, the artwork removal claims do not arise from the 

October 2017 hearing, and even assuming they did the three-year statute of limitations 

period would extend from October 2017 through October 2020, overlapping with 

Emergency rule 9’s extension window. (See Committee for Sound Water & Land 

Development v. City of Seaside (2022) 79 Cal.App.5th 389, 403 [holding that Emergency 
22.

C. Further Proceedings

Having determined that Krohe’s claims regarding Steinhardt’s disposition of the 

paintings are not necessarily time barred based on the allegations in the petition, we 

reverse the order granting judgment on the pleadings solely with respect to the claims 

related to those paintings. We affirm the judgment in favor of Steinhardt on all other 

claims in the petition, which are barred by res judicata as discussed, ante.

We close by noting that this partial reversal should not be taken as expressing any 

views on the merits of Krohe’s claims regarding the paintings. Steinhardt did not seek 

judgment on the pleadings based on failure to state a claim, so we do not decide whether 

the petition sufficiently states a cause of action for conversion or breach of fiduciary 

duty. (Cf. Regent Alliance Ltd. v. Rabizadeh, supra, 231 Cal.App.4th at p. 1181 

[elements of conversion are “ ‘(1) the plaintiff’s ownership or right to possession of 

personal property; (2) the defendant’s disposition of the property in a manner that is 

inconsistent with the plaintiff’s property rights; and (3) resulting damages’ ”]; LaMonte v. 

Sanwa Bank California (1996) 45 Cal.App.4th 509, 517 [“In order to plead a cause of 

action for breach of fiduciary duty against a trustee, the plaintiff must show the existence 

of a fiduciary relationship, its breach, and damage proximately caused by that 

breach ....”].)

We reverse Steinhardt’s award of attorney fees for bringing the motion for 

judgment on the pleadings only because we are reversing in part the order granting that 

motion. (See Bevis v. Terrace View Partners, LP (2019) 33 Cal.App.5th 230, 263.) We 

express no views on the frivolous or nonfrivolous nature of Krohe’s claims regarding the 

alleged taking of the paintings. Should further proceedings ultimately result in a 

judgment against Krohe on those claims, the probate court may reassess the propriety of 

rule 9 temporarily tolls statutes of limitations, and noting “ ‘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 time during which the tolling event previously 

occurred.’ ”].)
23.

awarding attorney fees to Steinhardt if it still deems Krohe’s claims to be frivolous or 

brought in bad faith. Krohe is thus cautioned that pursuit of frivolous claims may well 

result in an even larger amount of attorney fees being awarded out of the Trust’s funds in 

the end. That said, the artwork removal issue was not previously adjudicated, and the 

face of the petition does not show the artwork removal claims were necessarily untimely; 

we therefore remand the case for further proceedings as to those claims and those claims 

only.

DISPOSITION

The order granting judgment on the pleadings on the petition for breach of 

fiduciary duty is affirmed as to all claims except those involving the removal of certain 

paintings from the Trust and reversed only as to the claims specifically related to those 

paintings. The order is also reversed as to the award of attorney fees. The case is 

remanded for further proceedings consistent with this opinion. The parties shall bear 

their own costs on appeal. (See Cal. Rules of Court, rule 8.278(a)(5).)

 DE SANTOS, J.

WE CONCUR:

PEÑA, Acting P. J.

SMITH, J.